UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A    MANUAL 


Equity  Pleading 


Practice. 


B.  M.  THOMPSON. 

Jay  Professor  of  Law  in  Michigan  University. 


DETROIT: 

FREE   PRESS   PRINTING   COMPANY. 

1889. 


T 


Entered  according  to  Act  of  Congress,  in  the  year  1889,  by 

BRADLEY  M.  THOMPSON, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


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tr,t 


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TO  THE  STUDENTS  OF  THE  LAW  DEPARTMENT 
OF  MICHIGAN  UNIVERSITY. 


The  following  manual  is  intended  simply  as  an 
introduction  to  the  study  of  Equity  Pleading  and 
Practice,  and  to  the  course  of  lectures  delivered 
upon  that  subject.  The  manual  has  been  divided 
into  lectures  for  the  purpose  of  indicating  the  ground 
which  a  particular  lecture  will  cover.  It  is  expected 
that  the  student  will  master  the  printed  synopsis 
before  attending  a  driven  lecture.  The  lectures  will 
not  be  confined  to  the  synopsis,  and  the  class  will 
be  quizzed  and  examined,  both  upon  the  manual, 
and  the  lectures  as  actually  delivered.  The  court 
rules  are  to  be  considered  a  part  of  the  manual, 
and  are  to  be  studied  in  connection  with  the  lec- 
tures. 

The  work  in  the  equity  Moot  Courts  cannot  be 
successfully  performed  without  a  careful  study  of 
the  court  rules.  Under  the  Michigan  rules  will  be 
found  references  to  the  decisions  of  this  State  con- 
struing;  them.      The    United    States   rules   have    the 


IV  INTRODUCTORY. 

valuable   annotations  of  Walter  S.  Harsha,   Clerk 

of  the  United  States  Circuit  Court  for  the  Eastern 

District  of  Michigan.     Mr.  Harsha  very  generously 

placed    these   annotations   at  my  disposal,  and    they 

are  taken  bodily  from  his  Annotated  Federal  Court 

Rules,  a  work  indispensable    to    the    practitioner   in 

the  United  States  Courts. 

B.  M.  Thompson. 

Michigan  Universitt, 
October  1,  1889. 


A   SUIT  IN   EQUITY. 


The  jurisprudence  of  the  United  States,  and  of 
many  of  the  several  states,  is  divided  into  two  depart- 
ments, Common  Law,  and  Equity.  These  two  depart- 
ments grew  up  side  by  side  in  England  and  came  to 
us  as  a  part  of  our  fatherland  inheritance.  The  powers 
of  the  High  Court  of  Chancery  in  England  and  the 
principles  upon  which  it  administered  justice  at  the 
time  of  the  revolution,  except  so  far  as  they  have 
since  been  modified  by  statute,  or  are  inapplicable 
to  our  institutions,  are  still  in  force  in  the  United 
States  and  the  several  states.  We  shall  hereafter  treat 
of  the  jurisdiction  of  the  Court  of  Equity.  We  pro- 
pose first  to  examine  the  method  of  conducting  busi- 
ness in  that  court.  We  shall  be  able  to  do  this  more 
satisfactorily  b}'  giving  a  sketch  of  a  suit  in  equity 
from  its  commencement  to  its  close,  under  the  present 
practice  of  the  United  States  Circuit  Courts  and  the 
Circuit  Courts  of  this  state. 

COMMENCEMENT   IN    A    SUIT    OF    EQUITY. 

A  suit  in  equity  is  commenced  by  filing  in  the  court 
having  jurisdiction  of  the  cause  and  the  parties,  a  bill 
or  petition  setting  forth  in  a  full,  clear  and  methodical 
l 


2  A    SUIT    IN    EQUITY. 

manner,  the  facts  and  circumstances  upon  which  the 
complainant  bases  his  claim  for  aid  and  relief,  and 
praying  that  he  may  be  given  such  relief  as  he  believes 
he  is  entitled  to  or  as  is  agreeable  to  equity  and  good 
conscience.  The  bill  or  petition  in  equity  takes  the 
place  of  a  declaration  at  common  law. 

The  ordinary  form  of  a  bill  in  equity  is  not  due  to 
any  statute,  but  to  the  practice  of  the  court,  and  has 
been  established  by  long  usage.  It  was  formerly  sup- 
posed that  every  bill  must  consist  of  nine  parts,  and, 
although  at  no  time  were  they  all  essential,  and  some 
have  been  superseded  by  the  rules  of  the  court,  it  is 
desirable  in  examining  a  bill  that  we  should  retain  the 
old  divisions.  Those  parts  consisted  of,  1.  The  address. 
2.  The  introduction.  3.  The  premises  or  stating  part. 
4.  The  confederating  part.  5.  The  charging  part. 
6.  The  clause  of  jurisdiction.  7.  The  interrogating 
part.  8.  The  prayer  for  relief.  9.  The  prayer  for 
process. 

I.       ADDRESS    OF    THE    BILL. 

In  England  the  bill  was  addressed  to  the  Lord 
Chancellor  or  other  person  having  for  the  time  the 
custody  of  the  great  seal.  In  a  circuit  court  of  the 
United  States :     "  In  the  Circuit  Court  of  the  .United 

States  in  and  for  the  District  of .     To  the 

Judges   of  the  Circuit  Court  of  the  United  States 

within   and  for  the  District  of ,  sitting  in 

equity."  In  this  state  the  bill  is  addressed  :  "  To  the 
Circuit  Court  for  the  County  of ,  in  Chan- 
cery." 


A    SUIT    IN    EQUITY.  3 

II.       THE    INTRODUCTION. 

This  part  of  the  bill  should  state  the  name,  descrip- 
tion and  residence  of  the  complainant  in  full  and  the 
character  in  which  he  sues,  whether  in  his  own  behalf 
or  in  autre  droit.  This  is  necessary  to  fix  the  identity 
of  the  parties  and  to  enable  the  defendant  to  resort  to 
the  complainant  for  his  costs  or  to  enforce  compliance 
with  any  other  order  that  may  be  made  by  the  court 
during  the  progress  of  the  proceedings ;  e.  <j., 

"  Your  orator,  A.  13.,  of  the  city  of  Ann  Arbor, 
Washtenaw  County,  in  this  state,  humbly  complain- 
ing, respectfully  shows  unto  this  Honorable  Court 
that,  etc." 

III.       STATING    PART. 

This  part  of  the  bill  should  contain  a  full  narrative 
of  all  the  facts  and  circumstances  of  the  complainant's 
case.  It  is  upon  this  part  of  the  bill  that  he  must 
ground  his  right  to  relief.  It  must  show  that  the 
court  has  jurisdiction  to  hear  and  determine  the  mat- 
ter in  controversy  and  assuming  that  the  statements 
made  are  true,  that  the  complainant  is  entitled  to  the 
aid  and  assistance  of  the  court.  The  testimony  neces- 
sary to  establish  the  facts  stated  need  not  be  set  out  in 
full,  but  enough  must  be  affirmed  so  that  the  com- 
plainant may  introduce  his  proof,  because  no  evidence 
will  be  considered  by  the  court  not  having  reference 
to  some  fact  put  in  issue  by  the  pleadings.  The  com- 
plainant is  not  required  to  set  forth  any  fact  of  which 
the  court  is  bound  to  take  judicial  notice.  Facts  are 
to  be  stated,  not  conclusions  of  law ;  e.  (/., 


4  A    SUIT    IN    EQUITY. 

(3  Danl.  Chy.  p.  1907) : 

"That  your  orator  being  seized,  or  well  entitled  in 
fee  simple  of  and  to  a  certain  messuage  and  dwelling 

house,  with  the  appurtenances  situate  at and 

hereinafter  described,  and   being  desirous  of  selling 

such  premises,  and  D.  E.,  of ,  being  minded 

to  purchase  the  same,  your  orator  and  the  said  D.  E., 

on  or  about  the day  of ,  entered 

into  and  signed  a  memorandum  of  agreement  respect- 
ing the  said  sale  and  purchase  in  the  words  and  to  the 
purport  and  effect  following,  that  is  to  say  (stating  the 
agreement  fully),  as  by  the  said  memorandum  of  agree- 
ment, to  which  your  orator  craves  leave  to  refer,  when 
produced  will  appear.  And  your  orator  further  shows 
that  the  said  D.  E.  paid  to  your  orator  the  sum  of  one 
thousand  five  hundred  dollars,  part  of  the  said  pur- 
chase money,  at  the  time  of  signing  said  agreement. 
And  your  orator  has  always  been  ready  and  willing  to 
perform  his  part  of  said  agreement,  and,  on  being  paid 
the  remainder  of  his  said  purchase  money  with  inter- 
est, to  convey  the  said  messuage  to  the  said  D.  E.  and 
his  heirs,  and  to  let  him  into  the  receipt  of  the  rents 
and  profits  thereof,  from  the  time  in  the  said  agree- 
ment in  that  behalf  mentioned." 

IV.       CHARGE    OF    CONFEDERACY. 

This  part  of  the  bill  charges  that  the  defendants 
intending  to  injure  and  defraud  the  Complainant  have, 
with  divers  other  persons  at  present  unknown  to  the 
complainant,  but  when  known  he  prays  may  be  made 
defendants  to  his  bill,  confederated  and  combined 
together  for  the  purpose  of  injuring  and  defrauding 
him  out  of  his  rights.  This  clause  is  never  necessary 
unless  there  has  been  in  truth  an  actual  conspiracy 
upon  which  fact  the  complainant  relies  as  making  a 


A    SUIT    IN    EQUITY.  O 

part  of  his  case.  It  is  said  to  have  arisen  from  a  two- 
fold error;  first,  that  parties  could  not  be  added  to 
the  bill  by  amendment,  whereas  there  never  was  a  time 
when  this  could  not  have  been  done  ;  and,  second,  that 
an  allegation  of  a  confederacy  would  be  sufficient  of 
itself  to  sustain  the  jurisdiction  of  the  court,  but  a 
simple  confederacy  and  combination  was  never  suffi- 
cient to  give  the  court  of  equity  jurisdiction  ;  e.  g.< 

"  But  now  so  it  is,  may  it  please  the  court,  that  the 
said  C.  D.,  combining  and  confederating  together  to 
and  with  divers  other  persons,  as  yet  unknown  to  your 
orator  (but  whose  names,  your  orator  prays,  when  dis- 
covered, may  be  inserted  herein  as  defendants  and 
made  parties  to  this  suit,  with  proper  and  sufficient 
words  to  charge  them  with  the  premises),  in  order  to 
oppress  and  injure  your  orator  do  absolutely  refuse, 
etc."  (here  insert  their  refusal  to  do  what  the  com- 
plainant claims  should  be  done  and  what  he  asks  the 
aid  of  the  court  in  compelling  to  be  done,  in  this  par- 
ticular case  a  demand  for  the  balance  of  the  money 
due  upon  the  land  contract  and  the  refusal  of  the 
defendant  to  make  the  payment.)  This  part  of  the 
bill  is  omitted  from  3  Danl".  Chy.  p.  1907. 

V.       CHARGING    PART. 

This  part  of  the  bill  alleges  the  pretences  which  it 
is  supposed  that  the  defendant  will  make  as  his  defence 
to  the  case  made  by  the  complainant  in  the  stating 
part  of  his  bill.  It  is  used  for  the  purpose  of  obtain- 
ing a  discovery  of  the  defendant's  case,  or  to  put  in 
issue  some  matter  which  it  is  not  for  the  interest  of 
the  complainant  to  admit.  The  example  given  by 
Lord  Eedesdale  (Mitford's  PI.  and  Pr.  in  Eq.  36)  is 


6  A    SLIT    IX    EQUITY. 

as  follows :  Pie  states  the  case  of  an  heir  filing  a  bill 
upon  any  equitable  ground,  and  who  apprehends  that 
his  ancestor  has  left  a  will.  He  may  state,  by  way  of 
pretence,  that  the  defendant  claims  under  such  will, 
and  thus  make  it  a  part  of  his  case,  without  admitting 
it;  and  the  heir  then  denies  the  existence  or  due  exe- 
cution of  the  will  and  charges  that  it  is  fraudulent. 
Under  the  rules  of  the  supreme  court  and  those  of 
most  of  the  states  retaining  chancery  practice,  this 
portion  of  the  bill  may  be  inserted  in  the  stating  part 
or  altogether  omitted  ;  e.  g., 

"  But  now  so  it  is,  may  it  please  the  court,  that  the 
said  D.  E.  alleges  that  he  is,  and  always  has  been,  ready 
and  willing  to  perform  the  said  agreement  on  his  part 
in  case  your  orator  could  have  made  or  can  make  a 
good  and  marketable  title  thereto  ;  whereas  your  orator 
charges  that  he  can  make  a  good  title  to  said  messuage 
and  premises."     'J  Danl.  Ch.  p.  1908. 

VI.       AVERMENT    OF    JURISDICTION. 

This  clause  avers  that  the  acts  complained  of  are 
contrary  to  equity,  that  the  complainant  has  no  remedy 
at  law  and  can  only  obtain  relief  in  a  court  of  equity. 
This  averment  was  intended  originally  apparently  to 
give  the  court  jurisdiction,  but  it  no  longer  answers 
that  purpose,  if  it  ever  did.  No  mere  assertion  of  the 
complainant  will  give  the  court  jurisdiction.  If  the 
facts  and  circumstances  set  forth  do  not  make  a  case 
coming  within  the  jurisdiction  of  the  court,  the  suit 
will  not  be  entertained  ;  and  if  they  do,  the  court  will 
entertain  the  bill  without  any  allegation   on   the  part 


A    SUIT    IN    EQUITY.  7 

of  the  complainant  that  the  court  lias  jurisdiction  to 
hear  and  determine  the  matter  and  ought  so  to  do. 
This  clause  seems  therefore  equally  nugatory  with  that 
of  confederacy ;  e.  g., 

"All  of  which  actings,  doings  and  pretences  of  the 
said  defendant  are  contrary  to  equity  and  tend  to  the 
manifest  injury  of  your  orator.  In  tender  considera- 
tion whereof,  and  for  that  your  orator  is  remediless 
by  the  strict  rules  of  the  common  law,  and  is  relievable 
only  in  a  court  of  equity,  where  matters  of  this  nature 
are  properly  cognizable." 

VII.       INTERROGATING    PART. 

The  bill  having  up  to  this  point  been  drawn  with  a 
view  of  showing  that  the  complainant  is  entitled  to 
relief  and  that  the  court  has  jurisdiction  to  grant  such 
relief,  now  prays  that  the  defendants  may  answer  all 
the  matters  therein  set  forth,  not  only  according  to 
their  positive  knowledge  of  the  facts  stated,  but  also 
according  to  their  remembrance,  the  information  they 
may  have  received,  and  the  belief  they  have  been  able 
to  form  on  the  subject.  At  the  first  this  clause  closed 
with  this  general  request,  that  being  supposed  suffi- 
cient to  procure  the  discovery  sought  for.  But  it 
was  soon  found  that  the  ingenious  solicitor  could 
answer  in  such  general  terms  that  the  substance  of 
the  question  wrould  not  be  touched.  To  meet  this 
difficulty  it  became  customary  to  set  out  specific 
interrogatories  covering  every  specific  fact  material  to 
be  answered,  and  also  as  to  all  facts  and  circumstances 
surrounding  the  main  fact.     The  defendant  cannot  be 


6  A    SUIT   IN    EQUITY. 

in-terrogated  as  to  any  fact  not  charged  in  the  bill. 
He  is  simply  required  to  answer  the  complainant's 
case  and  these  interrogatories  are  to  enable  him  to  do 
so  fully  and  fairly.  He  cannot  be  required  to  do 
more  than  that,  therefore  he  is  not  required  to  answer 
any  interrogatory  the  answer  to  which  would  not  be 
■responsive  to  some  fact  charged  in  the  bill ;  e.  </., 

"  To  the  end  therefore  that  the  said  D.  E.  and  the 
rest  of  the  confederates  when  discovered,  may  upon 
their  several,  respective  and  corporal  oaths,  to  the  best 
and  utmost,  full,  true,  direct  and  perfect  answer  make 
to  all  and  singular  the  matters  hereinbefore  stated  and 
charged,  and  that  as  fully  and  particularly  as  if  the 
same  were  here  repeated  and  they  distinctly  interro- 
gated thereto,  and  that  not  only  as  to  the  best  of  their 
respective  knowledge  and  remembrance,  but  also  as  to 
the  best  of  their  respective  information,  hearsay  and 
belief,  and  more  especially  that  they  may  answer  and 
set  forth  : 

1.  Whether  he  said  D.  E.,  etc. 

2.  Whether  he  said  D.  E.,  &c." 

Since  in  most  of  the  States  parties  may  be  exam- 
ined as  witnesses,  it  is  customary  now.  in  most  cases, 
to  expressly  waive  an  answer  under  oath,  and  to  omit 
interrogatories  altogether. 

VIII.       FRAYER    FOR    RELIEF. 

The  prayer  for  relief  is  usually,  first,  a  special  prayer 
for  the  particular  relief  that  the  pleader  thinks  he  is 
entitled  to,  and  then  for  general  relief,  so  that  should 
the  court  refuse  to  grant  the  specific  relief  asked,  he 
may  obtain  such  relief  as  the  court  thinks  he  is  entitled 


A    SUIT    IX    EQUITY.  \) 

to,  at  the  hearing.  It  is  therefore  never  proper  or 
safe  to  omit  a  prayer  for  general  relief.  Indeed, 
unless  the  plaintiff  asks  for  an  injunction  or  a  ne  exeat, 
the  prayer  for  general  relief  is  sufficient  to  entitle  him 
to  such  a  decree  as  his  case  merits,  provided  the  relief 
asked  for  at  the  hearing  is  authorized  by  the  facts 
stated  in  the  bill.  If  an  injunction  or  a  writ  of  ne 
exeat  is  desired,  it  must  be  specially  prayed  for;  e.  g., 

"  And  that  the  said  D.  E.  may  be  compelled  by  a 
decree  of  this  Honorable  Court  specially  to  perform 
said  agreement  with  your  orator,  and  to  pay  to  your 
orator  the  balance  of  said  purchase  money,  with  inter- 
est on  the  same  from  the  time  when  such  purchase 
money  ought  to  have  been  paid,  your  orator  being 
willing,  and  hereby  offering  specially  to  perform  the 
said  agreement  on  his  part,  and  on  being  paid  the  said 
remaining  purchase  money  and  interest,  to  execute  a 
proper  conveyance  of  said  messuage  and  premises  to 
the  said  D.  E.,  and  to  let  him  into  the  possession  of 

the  rents  and  profits  thereof  from  the day  of 

.     And  that  your  orator  may  have  such  further 

and  other  relief  in  the  premises  as  the  nature  of  his 
case  shall  require  and  to  the  court  shall  seem  meet." 

IX.       PRAYER    FOR    PROCESS.   . 

The  bill  in  the  last  place  prays  that  a  writ,  of  sub- 
pcena  may  issue  requiring  the  defendants  to  appear 
and  answer  the  matters  alleged  against  them,  and 
abide  the  determination  of  the  court  on  the  subject. 
The  rules  of  the  United  States  Supreme  Court  require 
that  the  prayer  for  process  in  the  bill  shall  contain  the 
names  of  all  the  defendants  named  in  the  introductory 
part  of  the  bill,  and  if  any  of  them  are  known  to  be 


10  A    SUIT    IN    EQUITY. 

infants  under  age,  or  otherwise  under  guardianship, 
shall  state  the  fact  so  that  the  court  may  take  order 
thereon  as  justice  may  require.  When  a  corporation 
is  made  defendant,  the  bill  should  pray  that  it  appear 
according  to  law.  If  an  injunction  or  a  writ"  of  ne 
exeat  is  desired,  there  must  be  a  special  prayer  there- 
for, and  it  must  be  also  asked  for  in  the  prayer  for 
process ;  e.  g., 

"  May  it  please  the  court  to  grant  unto  your  orator 
the  people's  writ  of  subpoena,  to  be  directed  to  the 
said  D.  E.,  commanding  him  at  a  certain  time,  and 
under  a  certain  penalty,  therein  to  be  inserted,  person- 
ally to  appear  before  said  court,  and  then  and  there 
full,  true,  direct  and  perfect  answer  make  to  all  and 
singular  the  premises,  and  further  to  perform  and 
abide  by  such  further  order  and  direction  as  said  court 
shall  deem  necessary." 

If  an  injunction  is  asked,  add:  "And  that  said 
D.  E.,  his  counselors,  attorneys,  solicitors,  officers  or 
agents,  may  be  restrained  by  an  injunction  issuing  out 

of  this  court  directed  to  him  from (here  follow 

an  accurate  description  of  all  the  acts  he  is  to  be 
enjoined  from  doing) — until  the  further  order  of  this 
court." 

JURAT    AND    SIGNATURE. 

The  bill  of  complaint  need  not  be  signed  by  the 
complainant,  but  it  must  be  signed  by  his  solicitor. 
Certain  bills,  bills  for  divorce  and  those  asking  an 
injunction,  for  instance,  must  be  sworn  to. 

Chancery,  rule  eight  of  the  Supreme  Court  of  this 
State,  prescribes  that  the  oath  administered  to  the 
party  shall  be  in  substance  as  follows  :  "  That  he  has 
read  the  bill,  or  heard  it  read,  and  knows  the  contents 


A    SUIT    IN    ENTITY.  11 

thereof,  and  that  the  same  is  true  of  his  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  stated 
to  be  upon  information  or  belief,  and  as  to  those  mat- 
ters he  believes  it  to  be  true,  and  that  the  substance  of 
the  oath  shall  be  stated  in  the  jurat.'1 

The  following  is  the  form  of  the  jurat  when  the  bill 
is  sworn  to  by  the  complainant : 

STATE  OF  MICHIGAN,  } 

„  >  ss. 
County,       ) 

Personally  appeared  before  me  X.  Y. — (official  char- 
acter stated) — this day  of ,  D.  E.,  who,  being- 
sworn,  deposeth  and  says,  that  he  is  the  complainant 
named  in  the  foregoing  bill  of  complaint ;  that  he  has 
read  said  bill  of  complaint  (or  has  heard  read),  and 
knows  the  contents  thereof,  and  that  the  same  is  true 
of  .his  own  knowledge,  except  as  to  those  matters 
therein  stated  to  be  upon  his  information  or  belief, 
and  as  to  those  matters  he  believes  it  to  be  true,  and 
further  saith  not. 

X.  Y. 
Add  Official  Character. 

Although  not  required  by  any  rule,  still  it  is  advis- 
able to  divide  a  bill  into  paragraphs,  and  number  each 
paragraph  for  convenience  of  reference,  or  of  amend- 
ment if  necessary.  The  statute  of  this  state  requires 
that  all  pleadings  and  proceedings  shall  be  fairly  and 
legibly  written.  In  entitling  and  endorsing  papers, 
made  by  either  party,  the  complainant's  name  must 
be  placed  first.  At  least  one  copy  of  the  bill  should 
be  made  and  retained  as  an  office  copy. 

The  bill  is  then  to  be  filed  with  the  register  of  the 
court.     No  process  can  issue  in  this  state  until  the 


12  A    SUIT    IN    EQUITY. 

tiling  of  the  bill,  when  it  issues  as  a  matter  of  course, 
but  in  a  United  States  court  a  praecipe  must  also  be 
filed  with  the  clerk,  directing  the  issuance  of  a  sub- 
poena, and  naming  the  rule  day  to  which  process  is  to 
be  made  returnable.     (Rules  7,  11,  12.) 

7 

SUBP02NA    TO    APPEAK. 

The  subpoena  is  a  writ  under  the  seal  of  the  court 
directed  to  the  defendant,  requiring  him  to  appear  on 
a  certain  day  and  answer  the  bill.  It  must  contain 
the  names  of  all  the  defendants,  be  tested  in  the  name 
of  the  court  from  which  it  issues,  and  made  returnable 
on  some  day  certain,  except  Sunday,  either  in  vaca- 
tion, or  term  not  less  than  ten  days  from  its  issue.  It 
must  be  signed  by  the  register  of  the  court  or  his 
deputy,  and  endorsed  with  the  name  of  the  solicitor. 
(Mich.  Oh.  Rule.)     e.  g., 

STATE  OF  MICHIGAN.        j 
The  Circuit  Court  for  the    r  to  wit: 
County  of In  Chancery.  ) 

In  the  name  of  the  People  of  the  State  of  Michigan. 
To  D E ,  ,  Greeting. 

You  are  hereby  notified  that  a  Bill  of  Complaint 
has  been  filed  against  yon  in  the  Circuit  Court  for  the 
County  of  ,  in  Chancery,  by  A.  B.,  as  Com- 
plainant, and  that  if  you  desire  to  defend  the  same, 
you  are  required  to  have  your  appearance  entered  with 
the  Register  of  said  Court  at  his  Office  in  the  Court 

House,  in  the  City  of ,  in  person  or  by  solicitor, 

within  twenty  days  after  the day  of ,  in  the 

year  188 — ,  which  is  the  return  day  of  this  writ: 
Hereof  fail  not  under  the  penalty  of  having  said  bill 
taken  as  confessed  against  you. 


A    SUIT    IN    EQUITY.  13 

Witness,  The  Honorable  A.  B.,  Circuit  Judge  at 
-,   this  — day  of  ,   in   the  year  of   Our 


Lord  one  thousand  eiylit  hundred  and  eighty 


C.  D. ,  Register. 
L.  M.,  Solicitor  for  Complainant. 


The  subpoena  is  to  be  served  on  or  before  the  return 
day,  by  delivering  to  the  defendant  a  copy,  inscribed 
copy,  endorsed  by  the  solicitor,  and  by  exhibiting  to 
him  the  original  under  the  seal  of  the  court.  It  may 
be  served  in  any  part  of  the  state.  The  service  need 
not  be  made  by  an  officer  of  the  court,  but  if  made  by 
an  individual,  such  service  must  be  shown  by  affidavit. 
If  it  is  made  by  an  officer,  he  makes  his  return  of  ser- 
vice on  the  subpoena. 

When  the  subpoena  has  been  properly  served,  the 
defendant  is  bound  to  appear  and  answer  to  the  charges 
preferred  against  him  in  the  bill,  within  the  time  lim- 
ited by  the  practice  of  the  court,  or,  if  required  by 
the  complainant,  compulsory  process  will  be  awarded 
against  him  for  his  contempt  in  neglecting  the  requi- 
sitions of  the  subpoena.  Appearance  is  the  formal 
proceeding  by  which  the  defendant  submits  himself 
to  the  jurisdiction  of  the  court,  and  it  is  necessary  in 
every  case  before  a  decree  can  be  rendered  against 
him  that  he  appear.  Formerly  when  the  defendant 
did  not  voluntarily  appear  after  being  served  with 
a  subpoena,  a  number  of  successive  processes  were 
resorted  to,  ending  in  a  sequestration  of  his  property 
for  the  purpose  of  compelling  an  appearance.  At  the 
present  time  in  all  the  states  there  are  statutory  enact- 


14  A    SUIT    IN    EQUITY. 

ments  making  the  process  of  the  court  more  effectual, 
and  providing  under  certain  circumstances  that  the 
appearance  of  the  defendant  may  be  entered  by  an 
order  of  the  court  and  the  bill  taken  pro  confesso. 
Process  for  effecting  the  compulsory  appearance  has 
fallen  into  disuse  since  the  enactment  of  these  statutes. 
Only  one  is  in  use  in  this  state — attachment — and  that 
is  only  resorted  to  when  the  answer  of  the  defendant 
is  essential  to  the  complainant. 

Under  the  practice  in  this  state  the  defendant,  after 
being  served  with  a  subpcena,  may  enter  his  appearance 
in  the  Register's  office.  This  appearance  is  to  be 
made  within  twenty  days  after  the  return  day  of  the 
subpoena. 

The  practice  in  the  United  States  Court  is  regulated 
by  Ch.  Rules  2,  11,  12. 

The  defendant  having  appeared,  proceeds  to  defend 
himself  against  the  allegations  of  the  complainant's 
bill.  The  character  of  his  defence  will  depend  upon 
the  nature  of  the  case  made  in  the  bill,  and  is  either 
by  disclaimer,  by  demurrer,  by  plea,  or  by  answer. 
All  of  these  several  defences  may  be  joined,  if  some 
one  of  them  is  the  appropriate  defence  to  some  part 
oi  the  bill. 

DISCLAIMER. 

If  the  defendant  has  no  interest  in  the  subject  con- 
cerning which  the  suit  is  brought,  he  may  avoid  the 
plaintiff's  claim  by  a  disclaimer,  which  is  a  renuncia- 
tion on  his  part  of  all  interest  or  claim  in  the  subject- 
matter  of  the  plaintiff's  claim.     For  instance,  suppose 


A    SUIT    IN    EQUITY.  15 

the  bill  is  filed  by  A  to  quiet  his  title  to  a  certain 
messuage,  and  B  is  charged  with  claiming  title  to  or 
an  interest  in  said  land,  when  in  point  of  fact  he  has 
no  interest  and  claims  none,  he  may  defend  by  filing 
a  disclaimer.  Supposing  the  bill  to  have  been  filed 
in  this  state  and  county,  the  disclaimer  might  be  in 
the  following  form  : 

V 

State  of  Michigan  —  In  the  Circuit  Court  of  the 
County  of  Washtenaw  —  In  Chancery. 

A.  B., 

Complainant, 
vs. 
C.  D., 
J.  L., 
C.  F., 
J.  A., 

Defendants. 

The  disclaimer  of  C  D.,  one  of  the  defendants,  to 
the  bill  of  complaint  of  A.  B. 

This  defendant  saving  and  reserving  for  himself 
now  and  at  all  times  hereafter,  all  manner  of  advan- 
tage and  benefit  of  exception  and  otherwise  that  can 
or  may  be  had  or  taken  to  the  many  untruths,  uncer- 
tainties and  imperfections  in  said  complainant's  bill  of 
complaint  contained,  for  answer  thereto  or  unto  so 
much,  or  such  part  thereof  as  is  material  for  this 
defendant  to  make  answer  unto,  he  answers  and  says : 
that  he  doth  fully  and  absolutely  disclaim  all  manner 
of  right,  title,  and  interest  whatsoever,  in  and  to  the 
following  described  real  estate,  viz.  :  (describe  land) 
being  the  same  real  estate  mentioned  and  described  in 
said  bill  of  complaint,  and  to  each  and  every  part  and 
parcel  thereof.  And  this  defendant  further  answering 
says,  that  he  never  had  or  claimed  or  pretended  to 
have  any  title  to  or  interest  in  said  land. 

And  this  defendant  denies  all  and  all  manner  of 


16  A    SUIT    IN    EQUITY. 

unlawful  combination  and  confederacy  wherewith  lie 
is  by  the  said  bill  charged,  without  this,  that  any  other 
matter,  cause  or  thing,  in  the  said  complainant's  said 
bill  of  complaint  contained,  material  or  necessary  for 
this  defendant  to  make  answer  unto,  and  not  herein 
and  herebj7,  well  and  sufficiently,  answered,  confessed, 
traversed  and  avoided,  or  denied,  is  true  to  the  knowl- 
edge or  belief  of  this  defendant ;  all  of  which  matters 
and  things  this  defendant  is  willing  to  aver,  maintain 
and  prove  as  this  Honorable  Court  shall  direct ;  and 
asks  to  be  hence  dismissed  with  his  reasonable  costs 
and  charges  in  this  behalf  sustained. 

C.  D. 
J.  C,  Solicitor  for  Defendant  C.  D. 


DEMURRER. 

If  there  appears  on  the  face  of  the  plaintiff's  bill 
any  defect  or  objection  which  can  be  offered  in  bar  of 
his  suit,  it  should  be  presented  by  a  demurrer.  A 
demurrer  admits  the  facts  as  alleged  in  the  bill  to  be 
true,  but  denies  that  they  are  sufficient  to  require  the 
defendant  to  answer.  The  demurrer  may  be  to  some 
part  or  to  the  whole  bill ;  e.  g^ 


TITLE. 


The  demurrer  of  J.  L.,  one  of  the  defendants  to 
the  bill  of  complaint  of  A.  B. 

This  defendant,  by  protestation,  not  confessing  any 
of  the  matters  in  and  by  said  bill  complained  of  to  be 
true  in  manner  and  form,  as  the  same  are  set  forth, 
says  that  he  is  advised  that  there  is  no  matter  or  thing 
in  said  bill,  good  and  sufficient  in  law,  to  call  this 
defendant  to  account  in  this  Honorable  Court  for  the 
same ;  but  that  there  is  good  cause  of  demurrer  there- 
unto, and  he  does  demur  accordingly,  and  for  cause  of 


A    SUIT    IN    EQUITY.  17 

demurrer  says,  that  said  bill,  in  case  the  same  were 
true,  contains  no  matter  of  equity  whereon  this 
court  can  ground  any  decree,  or  give  complainant  any 
relief  as  against  this  defendant.  Wherefore,  and  for 
divers  other  errors  in  said  bill  contained  and  appearing 
on  the  face  thereof,  this  defendant  does  demur  thereto, 
and  humbly  craves  the  judgment  of  this  Honorable 
Court,  whether  he  is  compellable  or  ought  to  make 
any  answer  thereunto  otherwise  than  as  aforesaid. 
And  this  defendant  prays  to  be  hence  dismissed  with 
his  costs  and  charges  in  this  behalf  most  wrongfully 
sustained. 

J.  L. 
A.  B.  D.,  Solicitor  for  Defendant  J.  L. 

The  above  form  of  demurrer  extends  to  the  whole 
bill.  When  the  demurrer  does  not  extend  to  the  whole 
bill,  it  should  designate  the  particular  parts  which  it  is 
intended  to  embrace,  for  otherwise  the  court  would  be 
compelled  to  examine  the  whole  bill  to  discover  them. 
In  case  only  a  part  of  the  bill  is  demurred  to,  an 
answer  to  the  remainder  of  the  bill  may  be  coupled 
with  the  demurrer;  e.  g., 


TITLE. 


The  demurrer  of  J.  L.  to  that  part,  including  para- 
graphs numbered  3,  4  and  5,  and  his  answer  to  the 
residue  of  the  bill  of  complaint  of  A.  B. 
(Set  forth  the  demurrer  as  above,  and  add :) 
"And  as  to  the  residue  of  said  bill,  this  defendant 
not  waiving  his  demurrer,  but  relying  thereon,  and 
saving  and  reserving  to  himself  now,  and  at  all  times 
hereafter,  all  manner  of  benefit  and  exception  which 
can  be  had,  to  the  residue  of  said  bill,  for  answer 
thereto,  or  to  so   much  thereof  as  this  defendant  is. 


18  A    SUIT    IN    EQUITY. 

advised  is  in  any  wise  material  or  necessary  for  him  to 
answer  unto,  answers  and  says  that,  &c." 

Every  species  of  defence  to  a  bill  in  equity  is 
required  to  be  signed  by  counsel  as  evidence  of  its 
propriety  and  sufficiency.  Since  a  demurrer  alleges 
no  facts,  but  rests  upon  matters  appearing  in  the  bill, 
it  need  not  be  signed  by  the  defendant.  The  rules  of 
the  Supreme  Court,  and  many  of  the  state  courts, 
require  that  the  counsel  for  the  defendant  shall  file 
with  the  demurrer  his  certificate  that  in  his  opinion  it 
is  well  founded  in  point  of  law,  and  also  the  affidavit  of 
the  defendant  that  it  is  not  interposed  for  delay  merely. 

When  the  defendant  demurs  to  the  whole  bill,  a 
question  of  law  is  presented  to  the  court  which  is 
brought  on  for  argument.  If  the  court  sustains  the 
demurrer  that  will  end  the  proceedings,  unless  under 
an  order  of  the  court  the  complainant  can  so  amend 
the  bill  as  to  cure  the  defect  pointed  out  by  the  demur- 
rer. In  case  the  demurrer  is  overruled,  the  defendant 
will  be  given  leave  to  plead  to,  or  to  answer  the  bill. 

A    PLEA. 

If  there  are  defects  in  the  complainant's  case,  which 
do  not  appear  upon  the  face  of  the  bill,  that  constitute 
a  special  defence  to  his  recovery,  they  may  be  taken 
advantage  of  by  plea.  A  plea  is  defined  as  a  special 
answer,  showing  or  relying  upon  one  or  more  things, 
as  a  cause  why  the  suit  should  be  either  dismissed, 
delayed  or  debarred  ;  it  does  not,  like  a  demurrer,  rest 
on  facts  charged  in  the  complainant's  bill,  but  alleges 


A    SUIT    IN    EQUITY.  19 

other  facts,  to  which  the  complainant  may  reply.  The 
office  of  the  plea  is  to  bring  forward  a  fact  which,  if 
true,  displaces  the  equity  of  the  bill. 

Pleas  have  been  arranged  under  four  classes.  1. 
To  the  jurisdiction.  2.  To  the  person  of  the  plaintiff. 
3.   To  the  bill  or  the  form  thereof.     And,  4.  In  bar. 

The  form  of  a  plea,  like  that  of  a  demurrer,  com- 
mences with  a  protestation  against  confessing  the 
truth  of  any  matter  in  the  bill.  It  should  distinctly 
show  whether  it  goes  to  the  whole  bill  or  only  a  part 
of  it.  The  defendant's  grounds  of  objection  to  the 
jurisdiction  of  the  court,  the  person  of  the  plaintiff  or 
in  bar  of  suit,  must  be  supported  by  averments,  so 
clear,  positive  and  distinct  of  every  fact  and  circum- 
stance essential  to  render  it  a  complete  equitable  bar, 
that  the  complainant  may  be  enabled  to  take  issue 
upon  its  validity. 

1.  A  plea  to  the  jurisdiction  does  not  dispute  the 
right  of  the  complainant  in  the  suit,  but  asserts  that 
his  claim  is  not  a  fit  subject  of  cognizance  in  a  court 
of  equity  or  that  some  other  tribunal  is  vested  with 
the  proper  jurisdiction.  Most  jurisdictional  defects 
can  be  reached  by  a  demurrer;  but  the  truth  may  not 
appear  on  the  face  of  the  bill.  For  instance,  the  Cir- 
cuit Court  of  the  United  States  has  no  jurisdiction  to 
hear  and  determine  causes  between  citizens  of  the 
same  state,  and  if  the  bill  should  allege  that  the  com- 
plainant and  defendant  were  citizens  of  different 
states,  the  fact  that  they  were  citizens  of  the  same  state 
could  only  be  contested  by  the  defendant  by  a  plea  to 


20  A    SUIT    IN    EQUITY. 

the  jurisdiction.  The  plea  must  contain  something 
more  than  a  mere  allegation  of  a  want  of  jurisdiction, 
the  court  of  chancery  having  general  jurisdiction, 
jurisdiction  will  be  presumed  unless  the  specific  fact 
is  pointed  out  which  deprives  the  court  of  jurisdiction. 

2.  A  plea  to  the  person  merely  disputes  the  right 
of  the  complainant  to  sue ;  for  instance  that  he  is  an 
infant,  an  idiot  or  a  lunatic. 

3.  The  usual  plea  to  the  bill  or  the"  frame  of  the 
bill  are  either,  1,  the  pendency  of  another  suit  for  the 
same  matter  in  another  court  of  equity,  or,  2,  the 
want  of  proper  parties  to  the  bill. 

4.  Pleas  in  bar  are,  1,  pleas  founded  on  some  bar 
created  by  the  statute.  The  most  usual  of  this  char- 
acter are  the  statute  of  limitations  and  the  statute  of 
frauds.  2.  Pleas  founded  on  matter  of  record,  that 
there  has  been  a  judgment  at  law  of  a  court  of  record 
between  the  same  parties  for  the  same  cause  of  action, 
or  a  final  decree  or  order  of  a  court  of  equity  in  a  suit 
between  the  same  parties  and  for  the  same  subject- 
matter.  3.  Pleas  of  matter  in  pais  are  pleas  of  stated 
account,  of  a  release,  of  a  purchase  for  a  valuable  con- 
sideration without  notice,  &c,  &c. 

PLEA    TO    BILL. 


TITLE. 


The  plea  of  C.  F.,  one  of  the  defendants  to  the  bill 
of  complaint  of  A.  B. 

This  defendant,  by  protestation  not  confessing  any 
of  the  matters  in  said  bill  contained  to  be  true  in  man- 


A    8UIT    IN    EQUITY.  21 

11  or  and  form,  as  the  same  are  therein  set  forth  does 
plead  thereunto,  and  for  cause  of  plea  sa\Ts,  that  here- 
tofore, and  before  complainant  exhibited  his  present 
bill  in  this  Honorable  Court  on  the  9th  day  of  Febru- 
ary, 18S5,  the  said  complainant  did  exhibit  his  bill  of 
complaint  in  this  Honorable  Court  against  these  said 
defendants  for  the  same  matters  and  to  the  same  effect 
and  for  the  like  relief,  as  the  said  now  complainant 
doth  by  his  present  bill  demand  and  set  forth ;  to 
which  said  first  bill  these  defendants  did  put  in  there 
joint  and  several  answers,  and  the  saicl  complainant 
thereunto  did  reply;  and  other  proceedings  were  there- 
upon had,  and  the  said  former  bill  is  still  depending 
in  this  court,  and  the  matters  thereof  undetermined ; 
and,  therefore,  this  defendant  does  plead  the  former 
bill,  answer  and  proceedings,  in  bar  to  the  present  bill  ; 
and  humbly  prays  the  judgment  of  this  Honorable 
Court,  whether  it  behooves  him  to  make  any  other  or 
further  answer  thereto  than  as  aforesaid,  and  prays 
to  be  hence  dismissed  with  his  reasonable  costs  and 
charges,  in  this  behalf  most  wrongfully  sustained. 

C.  F. 

J.  K.,  Solicitor  for  Defendant  C.  F. 

In  case  the  complainant  thinks  the  plea  insutKcient 
he  may  notice  it  for  hearing,  when  the  question  of  its 
validity  will  be  passed  upon  by  the  court.  If  the 
court  sustains  the  plea  as  good  in  form  and  substance, 
the  complainant  may  take  issue  as  to  the  truth  of  its 
alleged  statements  of  fact  by  filing  a  replication  ;  e.  (/., 

TITLE. 

The  replication  of  A.  B.,  complainant  to  the  plea  of 
C.  F.,  defendant,  this  repliant  saving  and  reserving  to 
himself  now  and  at  all  times  hereafter,  all  and  all 
manner  of  advantage  of  exception  which  may  betaken 


22  A    SUIT    IN    EQUITY. 

to  the  manifold  insufficiencies  of  the  said  plea,  for 
replication  thereunto,  says  that  he  will  now  maintain 
and  prove  his  bill  of  complaint  to  be  true,  certain  and 
sufficient  in  the  law  to  be  answered  unto  ;  and  that  the 
said  plea  is  uncertain,  untrue  and  insufficient,  to  be 
replied  unto  by  the  repliant  without  this,  that  any 
other  matter  or  thing;  whatever,  in  said  plea  contained, 
material  or  effectual  in  the  law,  to  be  replied  unto,  and 
not  herein  and  hereby  well  and  sufficiently  replied 
unto,  confessed  and  avoided,  traversed  or  denied,  is 
true  ;  all  which  matters  and  things  the  repliant  is  and 
will  be  ready  to  aver,  maintain  and  prove,  as  this 
Honorable  Court  shall  direct,  and  humbly  prays  that 
as  in  and  by  his  said  bill  he  has  already  prayed. 

A.  L., 

Solicitor  for  Complainant. 

The  replication  admits  that  the  plea  is  good  inform 
and  substance  and  puts  in  issue  the  truth  of  its  allega- 
tions of  fact,  and  the  parties  proceed  to  take  proofs 
the  same  as  when  a  replication  is  filed  to  an  answer. 

ANSWER. 

If  there  is  nothing  in  the  bill  of  the  complainant  to 
which  the  defendant  is  able  or  willing  to  demur;  and 
if  he  have  no  extrinsic  matter,  which  he  can  offer  by 
way  of  plea  ;  or  if  his  plea  or  demurrer  has  been  over- 
ruled, he  may  proceed  to  controvert  the  claims  of  the 
plaintiff  by  filing  an  answer  to  the  bill.  The  answer 
need  have  no  particular  form  as  to  that  part  which 
sets  forth  the  defendant's  case.  It  is  usually  drawn 
so  as  to  admit  in  the  first  instance  all  the  allegations 
contained  in  the  complainant's  bill  which  are  true, 
and    then  follows  denials  of  all  the  allegations  made 


A    St'IT    IN    EQUITY.  23 

which  are  in  controversy.  If  there  are  any  statements 
in  the  bill  upon  which  the  defendant  has  no  knowl- 
edge or  information  he  states  that  fact  and  leaves  the 
complainant  to  his  proofs.  Then  follows  a  statement 
of  all  facts  and  circumstances  sustaining  the  equities 
of  the  defendant's  position.  Each  interrogatory  is  to 
be  answered  separately  and  the  answers  numbered  to 
correspond  with  the  numbers  of  the  interrogatories. 
When  the  defendant  submits  to  answer  at  all,  he  must 
make  a  full,  frank  and  explicit  disclosure  of  all  mat- 
ters material  or  necessary  to  be  answered,  whether 
resting  within  his  own  knowledge  or  upon  informa- 
tion or  belief;  e.  g.. 

TITLE. 

The  answer  of  J.  A.,  one  of  the  defendants  to  the 
bill  of  complaint  of  A.  13. 

This  defendant,  now  and  at  all  times  hereafter, 
reserving  all  manner  of  benefit  and  advantage  of 
exception  to  the  many  errors  and  insufficiencies  in  said 
bill  contained,  for  answer  thereto,  or  unto  so  much, 
or  such  parts  thereof  as  this  defendant  is  advised  is 
material  for  him  to  make  answer  unto,  he  answers  and 
says  (here  follows  a  full  and  explicit  answer  to  all  the 
allegations  in  the  bill  and  answers  to  the  interroga- 
tions), and  this  defendant  denies  all  unlawful  combina- 
tion in  said  bill  charged,  without  this,  that  any  other 
matter  or  thing  material  for  him  to  make  answer  to, 
and  not  herein  sufficiently  answered,  avoided  or 
denied,  is  true  to  the  knowledge  or  belief  of  this 
defendant.  All  which  matters  and  things  this  defend- 
ant is  ready  to  aver  and  prove  as  this  court  shall  direct, 
and  prays  to  be  hence  dismissed,  with  his  reasonable 


24  A    SI' IT    IN    EQUITY. 

costs  and  charges,  in  this  behalf  most  wrongfully  sus- 
tained. 

J.  A. 

L.   S.,  Solicitor  for  Defendant  J.  A. 

The  answer  must  be  signed  by  the  defendant  and 
must  be  sworn  to,  unless  his  answer  under  oath  is 
waived  in  the  bill. 

The  defendant  may  claim  in  his  answer  the  benefit 
of  a  general  demurrer.  In  case  he  desires  to  do  so  he 
inserts,  immediately  preceding  the  closing  part  given 
above,  the  following: 

"And  this  defendant  submits  to  this  Honorable 
Court  that  all  and  every  of  the  matters  in  the  said 
complainant's  bill,  mentioned  and  complained  of,  are 
matters  which  may  be  tried  and  determined  at.  law., 
and  with  respect  to  which  the  said  complainant  is  not 
entitled  to  any  relief  from  a  court  of  equity  ;  and  this 
defendant  hopes  that  he  shall  have  the  same  benefit  of 
this  defence  as  if  he  had  demurred  to  said  bill  of  com- 
plaint." 

It  sometimes  happens  that  the  defendant  will,  in 
order  to  obtain  some  affirmative  relief  to  which  he 
conceives  he  is  entitled,  and  which  he  could  not  obtain 
under  his  answer,  be  compelled  to  file  a  cross  bill. 
This  is  in  the  nature  of  an  original  bill,  there  are  the 
same  parties,  reversed,  and  the  two  bills  are  heard 
together. 

If  the  complainant  conceives  that  the  admissions  in 
the  defendant's  answer  are  alone  sufficient  to  entitle 
him  to  such  a  decree  as  he  desires  he  may  set  down 
the  cause  for  hearing  upon  bill  and  answer. 


A    SUIT    IN    EQUITY.  20 

EXCEPTIONS    TO  THE    ANSWER. 

If  the  discovery  contained  in  the  answer  is  incom- 
plete, or  the  allegations  contained  in  the  bill  are 
insufficiently  replied  to,  the  complainant  may  prefer 
exceptions  to  the  defendant's  answer  and  require  it  to 
be  more  full  and  particular.  The  exceptions  must  be 
in  writing  and  signed  by  counsel,  and  they  must  also 
state  with  precision,  and  accuracy,  the  points  in  which 
the  defendant's  answer  is  defective,  or  they  will  be 
rejected  as  vague  and  impertinent.  Care  must  be 
taken  also  to  omit  no  point  to  which  an  exception 
would  lie,  as  the  rules  of  the  court  do  not  permit 
any  others  to  be  afterwards  added.  It  may  be  stated 
generally  that  any  answer  will  be  considered  insuffi- 
cient in  which  the  defendant  does  not  fully  respond, 
according  to  the  best  of  his  knowledge,  remembrance 
or  belief,  to  every  material  allegation,  charge  or  inter- 
rogatory in  the  bill ; 


TITLE. 


Exceptions  taken  by  the  said  complainant  A.  B.  to 
the  answer  of  the  said  defendant  J.  A.  to  his  bill  of 
complaint  in  this  cause. 

First  Exception. — For  that  the  said  defendant  has 
not,  according  to  the  best  of  his  information,  knowl- 
edge and  belief  set  forth  and  discovered  in  his  said 
answer  whether,  &c. 

Second  Exception. — For  that,  &c. 

In  all  of  which  particulars  the  complainant  is  advised 
that  the  answer  of  the. defendant  is  altogether  evasive, 
imperfect  and  insufficient.  Wherefore  said  complain- 
ant doth  except  thereto,  and  prays  that  the  defendant 


26  A    SUIT    IN    EQUITY. 

may  be  compelled  to  amend  the  same,  and  to  put  in 
full  and  sufficient  answer  to  the  complainant's  bill." 

F.  L.,  Solicitor  for  Complainant. 

Exceptions  may  also  be  made  to  scandalous  and 
impertinent  matter  in  the  bill. 

When  exceptions  are  taken  to  the  sufficiency  of  the 
answer  and  the  defendant  does  not  amend  his  answer, 
the  exceptions  are  referred  to  a  master,  in  this  state  to 
a  circuit  court  commissioner,  who  is  directed  to  report 
whether  the  answer  is  sufficient  in  the  points  excepted 
to  or  not.  If  the  master  reports  it  to  be  insufficient, 
the  defendant  must  submit  to  answer  more  fully, 
unless  by  exceptions  to  such  report  of  the  master,  he 
appeals  to  the  judgment  of  the  court,  and  obtains  a 
determination  in  his  favor. 

INTERLOCUTORY  PROCEEDINGS. 

During  the  progress  of  a  suit  in  equity  it  frequently 
becomes  necessary  to  make  what  are  known  as  inter- 
locutory orders  and  decrees.  The  most  important  and 
usual  are  those  which  relate  to  amendments  of  the 
pleadings,  the  appointment  of  a  receiver,  payment  of 
money  into  court,  issue  of  an  injunction  and  reference 
to  a  master.  These  orders  are  made  by  the  court  upon 
motion  made  orally  or  upon  petition  in  writing. 

AMENDMENTS. 

In  a  court  of  equity  matters  of  form  are  never  suf- 
fered to  prejudice  the  rights  of  a  party ;  and  the 
liberty  of  amendment,  often  upon  condition  however, 


A    SUIT    IN    EQUITY.  27 

is  allowed  to  all  kinds  of  pleading.  It  the  bill  has 
not  been  sworn  to,  under  the  rules  in  this  state,  the 
complainant  can  amend  of  course,  without  the  pay- 
ment of  costs,  before  the  demurrer  plea  or  answer  is 
put  in.  And  in  certain  other  cases  he  may  amend  of 
course  afterwards,  but  usually  application  must  be 
made  to  court  by  motion  or  leave  to  amend.  The 
amendments  must  have  reference  to  matters  existing 
before  the  commencement  of  the  suit ;  a  matter 
which  "has  occurred  since  the  commencement  of  the 
suit  must  be  brought  before  the  court  by  a  supple- 
mental bill.  When  amendments  are  made  by  leave 
of  the  court,  or  of  course,  a  copy  of  the  bill  as 
amended  is  tiled  and  a  copy  served  on  the  defendant's 
solicitor,  or  a  copy  of  the  amendments  referring  to 
the  paragraphs  and  folios  amended  is  tiled  and  a  copy 
of  such  amendments  served.  The  amended  and  orig- 
inal bill  are  considered,  for  most  purposes,  as  one,  and 
make  up  the  same  record  ;  e.  </., 


TITLE. 


Amendments  to  the  bill  of  complaint  in  this  cause, 

made  pursuant  to  an  order  of  this  court  dated  the 

day  of instant. 

First.  In  the  third  line  of  the  second  folio  of  the 
bill  after  the  word  "testator"  interline  "to-wit,  on  or 
about  the  5th  day  of  June,  1880." 

Second.  After  the  word  "  satisfaction  "  in  the  tenth 
line  of  the  fifth  folio  insert  the  amendment  marked 
"A"  which  is  annexed  to  the  bill  on  file,  and  is  as  fol- 
lows :     "After,"  &c.     *     *     * 

Third.  Strike  the  names  of  C.  D.  and  M.  F.  out 
of  the  sixth  line  of  the  third  folio. 


28  A    SUIT    IN    EQUITY. 

Sir  —  Take  notice  that  the  foregoing  is  a  copy  of 
the  amendments  as  set  forth. 

F.  L..  Solicitor  for  Complainant. 
To  J.  L.,  Solicitor  for  Defendant. 


APPOINTMENT    OF    A    RECEIVER. 

Whenever  in  the  progress  of  a  suit  a  proper  show- 
ing is  made  to  the  court  that  there  is  danger  of  the 
waste  and  destruction  of  property  which  is  the  subject 
of  the  litigation,  a  receiver  may  be  appointed,  charged 
with  the  duty  of  caring  for  such  property. 

PAYMENT    OF   MONEY    INTO   COURT. 

Whenever  it  appears  to  the  court  that  there  is  a 
balance  of  money  which  it  is  admitted  is  due  to  the 
complainant  in  the  hands  of  the  defendant,  he  will,  by 
an  order  of  the  court,  be  directed  to  pay  it  into  the 
hands  of  the  register.  And  the  court  may  make  a 
still  further  direction  and  order  the  money  so  paid 
into  court  to  be  deposited  or  invested  on  good  security. 

REFERENCES. 

Whenever  it  is  necessary  in  the  progress  of  a  cause 
to  take  an  account,  to  investigate  the  title  of  persons 
to  property  in  suit,  or  make  any  other  inquiries  neces- 
sary to  satisfy  the  conscience  of  the  court,  or  to  perform 
some  special  ministerial  act,  such  as  to  sell  property, 
etc.,  the  court  refers  the  matter  to  a  circuit  court  com- 
missioner. References  are  of  such  frequent  occur- 
rence, and  so  important,  that  they  form  the  subject  of 


A    SUIT    IN    EQUITY.  29 

a   subordinate   system    of   practice.     (See  Hoffman's 
Master  in  Chancery.) 

There  is  such  a  variety  of  orders  that  in  this  short 
synopsis  we  can  only  indicate  what  the  practice  is.  In 
case,  for  instance,  the  defendant  lias  money  in  his 
hands  belonging  to  the  complainant,  which  the  com- 
plainant desires  to  have  paid  into  court,  he  notifies  the 
defendant's  solicitor  that  he  will  make  a  motion  to 
that  effect ;  e.  (/., 

NOTICE    OF   MOTION,    ETC. 


TITLE. 


Sir : — Take  notice  that  I  intend  to  move  this  Hon- 
orable Court,  on  the day  of next,  at  ten 

o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel 

can  be  heard,  at ,  in  the  city  of ,  for  an 

order  that  the  above  named  defendant  may,  on   or 

before    the day   of next,   pay   into  the 

hands  of  the  Register  of  this  court,  in  trust,  in  this 

cause,  the  sam  of  $ ,  admitted  by  the  answer  of 

said  defendant  to  be  due  from  him,  and  that  the  same, 
when  paid  in,  may  be  deposited  in  trust  by  the  Regis- 
ter in  such  bank,  or  invested  by  him  in  trust,  in  such 
manner  as  this  court  shall  direct,  with  costs.  And  for 
such  further,  or  for  such  other  order,  or  relief,  as  the 
court  may  think  proper  to  grant;  which  motion  will 
be  founded  on  the  bill  and  answer  in  this  cause. 

L.  M. ,  Solicitor  for  Complainant. 
To  J.  C. ,  Solicitor  for  Defendant. 

At  the  time  and  place  mentioned  in  such  notice,  an 
oral  motion  is  made  and  argument  had.  If  the  court 
grants  the  motion,  an  order  is  entered  in  accordance 
therewith,  or  such  an  order  as  the  court  deems  proper 
under  the  circumstances  ;  e.  g., 


30  A    SUIT    IN    EQUITY. 


order,  etc. 

State   of   Michigan,    the    Circuit   Court   for   the 
County  of  Washtenaw — In  Chancery. 


title. 


At  a  session  of  said  court,  held  at  Ann  Arbor,  on 
the day  of ,  1888. 

Present,  Hon.  C.  D.,  Circuit  Judge. 

Oh  reading  the  bill  and  answer  filed  in  this  cause, 
and  on  motion  of  L.  M.,  solicitor  for  the  complainant, 
and  on  hearing  J.  C,  solicitor  for  the  defendant,  in 
opposition  thereto :     It  is  ordered  that  the  defendant, 

A.  B.,  do,  on  or  before  the day  of next, 

pay  into  the  hands  of  the  .Register  of  this  court,  in 

trust,  in  this  cause,  the  sum  of  $ ,  admitted  by  the 

answer  of  said  defendant  to  be  due  from  him ;  and 
that  when  such  mone}r  be  paid  in,  it  be  deposited  by 
said  Register  in  the  First  National  Bank  of  Ann  Arbor, 
to  the  credit  of  this  cause,  there  to  remain  until  the 
further  order  of  this  court. 

C.  D.,   Circuit  Judge. 

Another  most  important  interlocutory  proceeding 
is  that  of  granting  an  injunction  restraining  the 
defendant  from  doing  some  particular  act  or  acts  which 
will  do  irreparable  injury  to  the  complainant.  When 
an  injunction  is  issued  during  the  pendency  of  the  suit, 
it  is  called  a  preliminary  injunction  ;  when  it  is  made  a 
part  of  the  final  decree  it  is  called  a  final  injunction. 
When  the  bill  prays  for  an  injunction  it  will  be  granted 
if  the  court  is  satisfied  that  the  plaintiff  is  entitled  to 
this  relief. 


A    SUIT    IN    EQUITY.  31 


injunction. 

State  of  Michigan,  in  the  Circuit  Court  for  the 
County  of  Washtenaw,  ss — In  Chancery. 

In  the  name  of  the  people  of  the  State  of  Michigan  : 
To  L.  C,  and  to  his  counsellors,  attorneys,  solicitors 
and  agents,  and  each  and  every  of  them,  greeting : 

Whereas,  it  has  been  represented  to  us,  in  the  Cir- 
cuit Court  for  the  county  of  Washtenaw,  in  chancery, 
on  the  part  of  C.  D.,  complainant,  that  he  has  lately 
exhibited  his  bill  of  complaint  against  you,  the  said 
C.  D.,  defendant,  to  be  relieved,  touching  the  matters 
therein  complained  of,  in  which  bill  it  is  stated, 
amongst  other  things,  that  you  are  combining  and 
confederating  with  others  to  injure  the  said  complain- 
ant, touching  the  matters  set  forth  in  the  said  bill,  and 
that  your  actings  and  doings  in  the  premises  are  con- 
trary to  equity  and  good  conscience ;  we,  therefore,  in 
consideration  thereof,  and  of  the  particular  matters  in 
the  said  bill  set  forth,  do  strictly  command  you,  the 
said  C.  D.,  and  the  persons  before  mentioned,  and  each 
and  every  of  you,  under  the  penalty  of  ten  thousand 
dollars,  to  be  levied  on  your  lands,  goods  and  chattels, 
to  our  use,  that  you  do  absolutely  desist  and  refrain 
from  selling,  mortgaging  and  doing  any  other  act  which 
will  effect  the  title  or  change  the  possession  of  the 
following  described  property,  situated  in  the  city  of 
Ann  Arbor,  in  the  county  of  Washtenaw,  and  State  of 
Michigan,  viz.  (here  follow  description),  until  the  fur- 
ther order  of  this  court. 

Witness  the  Honorable  A  Iv.,  Circuit  Judge,  and 

the  seal  of  said  circuit  court,  at  Ann  Arbor,  this 

day  of ,  in  the  year  one  thousand  eight  hundred 

and  eighty-eight. 

D.  F.,  Register. 

L.  M.,  Solicitor  for  Complainant. 


32  A    SUIT    IN    EQUITY. 

The  injunction  must  be  served  on  the  defendant. 
Service  upon  his  solicitor  is  not  good.  The  service  is 
made  in  the  same  manner  as  service  of  a  subpcena,  by 
the  sheriff  who  makes  his  return  upon  the  original 
writ  as  follows  : 

STATE  OF  MICHIGAN,     ) 
County  of  Washtenaw,   f     ' 

I  hereby  certify  that  on  the  ■ —  day  of 


A.  D.  18S-,  I  served  the  within  writ  of  injunction 
upon  the  within  named  L.  G.,  the  defendant  in  per- 
son, within  the  said  county,  by  delivering  to  him  a 
copy  of  the  said  writ,  subscribed  by  the  complainant's 
solicitor,  and  inscribed  "copy,"  and  showing  the  origi- 
nal, under  the  seal  of  the  court,  at  the  time  of  such 
delivery  to  the  said  defendant. 

Dated  this day  of -,  A.  D.  188-. 

A.  J.,  Sheriff. 
REPLICATION    TO    ANSWER. 

As  we  have  already  said,  if  the  answer  is  such  that 
the  complainant  is  satisfied  that  he  can"  obtain  the 
relief  he  desires  on  the  admissions  made  therein,  he 
notices  the  cause  for  hearing  on  the  pleadings.  If, 
however,  the  answer  controverts  the  facts  charged  in 
the  plaintiff's  bill,  or  sets  forth  new  facts  and  circum- 
stances, which  the  plaintiff  is  not  disposed  to  admit, 
he  files  a  replication  to  the  defendant's  answer.  This 
replication  is  identical  with  the  replication  to  a  plea 
— already  given — except  where  the  word  "  plea  " 
occurs  in  that,  the  word  "answer"  is  to  be  inserted. 
Formerly,  if  the  defendant's  answer  stated  new  facts, 
in   opposition   to  those  alleged  in  the  bill,  the  com- 


A    SFIT    IN    EQUITY.  33 

plain  ant  was  accustomed  to  reply  by  a  special  state- 
ment of  other  facts,  not  before  charged.  This  pro- 
duced a  rejoinder  by  the  defendant.  A  sur-rejoinder 
frequently  followed  the  rejoinder,  and  a  rebutter  the 
sur-rejoinder,  and  so  on  as  long  as  new  facts  were  set 
forth  by  one  party  and  denied  by  the  other. 

TESTIMONY. 

The  cause  being  at  issue,  by  the  tiling  of  a  replica- 
tion, the  parties  may  proceed  to  their  proofs  under 
the  rules  of  court  for  the  purpose  of  establishing  their 
respective  cases. 

There  have  been  within  the  past  few  years  such 
important  and  radical  changes  in  this  part  of  chancery 
practice  that  we  will  confine  our  attention  to  the  prac- 
tice in  this  state.  Similar  changes  have  been  made  in 
other  states. 

Within  ten  days  after  the  cause  is  at  issue  either 
party  may  give  notice  and  have  the  testimony  taken 
in  open  court.  If  neither  party  has  obtained  the 
right  to  an  examination  of  witnesses  in  open  court, 
then  either  may  within  thirty  days  thereafter  enter  an 
order  of  course,  and  give  notice  to  the  opposite  party, 
for  the  taking  of  testimony  within  sixty  days  before 
a  circuit  court  commissioner,  or  they  may  stipulate  to 
have  it  taken  before  a  notary  public.  At  any  time 
within  the  sixty  days  from  the  service  of  notice  of 
such  order,  either  party  by  giving  ten  days'  notice  to. 
the  opposite  party  of  the  names  and  places  of  abode 
of  the  witnesses  to  be  examined,  and  of  the  time  and 
3 


34:  A    SUIT   IN    EQUITY. 

place  of  such  examination,  may  take  the  testimony  of 
his  witnesses  before  such  commissioner  or  notary  pub- 
lic. The  testimony  is  taken  orally, -questions,  upon 
the  direct  and  cross-examination  being  asked  by  the 
respective  solicitors  of  the  parties,  which  are  written 
out  in  full  by  the  commissioner,  together  with  the 
witnesses  answer.  If  any  question  is  objected  to  such 
objection  is  taken  down  by  the  commissioner  and 
then  the  answer.  After  the  testimony  is  taken  it  is 
read  over  to  the  witness  who  signs  it.  At  the  expira- 
tion of  the  sixty  days  either  party,  on  filing  an  affidavit 
of  the  service,  or  receipt  of  such  notice,  may  enter  an 
order  of  course  that  the  proofs  be  closed.  When  an 
order  is  entered  closing  the  proofs  the  testimony  taken 
is  filed  in  the  cause.  The  time  for  taking  testimony 
may  be  extended  by  stipulation  or  by  order  of  the 
court  on  cause  shown. 

In  case  witnesses  reside  out  of  the  state  or  more 
than  thirty  miles  from  the  residence  of  the  commis- 
sioner, either  party  wishing  to  examine  them  may, 
during  the  time  the  order  to  take  proofs  is  in  force, 
present  a  petition  to  the  Register,  stating  the  names 
and  residences  of  the  witnesses  and  of  the  persons  pro- 
posed as  commissioners,  asking  for  the  issuance  of  a 

COMMISSION    TO    TAKE    THE    TESTIMONY 

of  such  witnesses.  The  adverse  party,  if  he  wishes, 
may  join  in  such  commission. 

Formerly  all  the  testimony  taken  in  chancery  pro- 
ceedings was  upon  written  interrogatories,  but  at  the 


A    SUIT    IN    EQUITY.  35 

present  time  it  is  only  necessary  to  resort  to  written 
interrogatories  when  the  witnesses  reside  out  of  the 
state.  The  interrogatories,  direct  and  cross,  are  settled 
by  the  commissioner,  the  practice  being  for  the  soli- 
citor, whose  witness  is  to  be  examined,  to  serve  upon 
the  opposing  solicitor  a  copy  of  the  direct  interroga- 
tories and  a  notice  of  the  time  and  place  of  their 
settlement.  And  such  solicitor  may,  at  such  time  and 
place,  have  cross  interrogatories  settled  ;  e.  <j., 

COMMISSION    TO    TAKE    TESTIMONY. 

STATE    OF    MICHIGAN,  )  gg 
County  op  Washtenaw,    f 

In  the  Circuit  Court  for  the  County   of  Wash- 
tenaw— In  Chancery. 

In  the  Name  of  the  People  of  the  State  of  Michigan  : 
To  John  Jackson,  Notary  Public,  of  the  City  of  San 
Francisco,  in  the  State  of  California,  greeting: 

Know  Ye,  that  in  confidence  of  your  prudence  and 
fidelity,  the  said  Circuit  Court  for  the  County  of 
Washtenaw  in  Chancer}',  has,  by  a  rule  entered  upon 
the  records  thereof,  in  a  certain  cause  now  pending  in 
said  Court,  wherein  A.  B.  is  complainant  and  C.  D.  is 
defendant,  and  now  at  issue  have  nominated  and 
appointed,  and  do,  by  these  presents,  nominate  and 
appoint  you,  and  give  unto  you  full  power  and  author- 
ity, to  examine  upon  oath  (or  affirmation)  John  Felix 
and  James  Dale,  of  the  City  of  San  Francisco,  in  the 
State  of  California,  witnesses  to  be  produced,  sworn 
and  examined  on  the  part  and  behalf  of  said  com- 
plainant, upon  certain  written  interrogatories  hereto 
annexed  ;  and  we  therefore  command  you,  that  at  a 
certain  day  and  place,  to  be  by  you  appointed,  you  do 
cause  the  said  John  Felix  and  James  Dale  to  come 


36  A    SUIT    IN    EQUITY. 

before  you,  and  then  and  there  examine  them,  and  each 
of  them,  on  his  oath  (or  affirmation),  first  taken  before 
you  (which  oath  or  affirmation  you  may  administer), 
touching  the  matters  and  things  referred  to  in  said 
interrogatories;  and  that  you  cause  the  examination 
of  said  witnesses  to  be  reduced  to  writing,  and  to  be 
subscribed  by  said  witnesses,  which  examination  is 
also  to  be  certified  by  you.  And  when  you  shall  have 
so  taken  the  said  depositions,  you  are  to  annex  the 
same,  with  any  exhibits  produced  and  proved  before 
you,  to  this  commission,  and  to  return  the  same  into 
said  Court,  according  to  the  direction  of  this  commis- 
sion. And  you  are  in  all  things  to  be  governed  in  tlie 
premises  by  the  instructions  hereto  annexed. 

Witness,  the  Honorable  A.  K.,  Circuit  Judge  of  said 
Circuit  Court,  at  the  Court  House,  in  the  City  of  Ann 

Arbor,  in  said  County,  this day  of ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 
eighty-eight. 

L.  D. ,  Register. 

C.  G.  and  M.  L. ,  Solicitors  for  Complainant. 

Michigan  chancery  rule  No.  52  requires  the  follow- 
ing instructions  to  be  annexed  to  such  commission  : 

INSTRUCTIONS. 

Hule  52.  To  every  commission  for  the  examina- 
tion of  witnesses  out  of  the  State,  a  copy  of  this  rule 
shall  be  annexed,  as  instructions  to  the  commissioner 
on  the  execution  of  the  commission : 

First.  Any  one  of  the  commissioners  may  execute 
the  commission. 

Second.  The  witness,  before  he  is  examined,  must 
take  an  oath  or  affirmation,  to  be  administered  by  the 
commissioner,  that  the  answers  to  be  given  by  him  to 
the  interrogatories  annexed  to  the  commission,  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth. 

Third.     The  examination  of  the  witness  must  be 


A    SUIT    IN    EQUITY.  -\7 

reduced  to  writing  by  the  commissioner,  or  by  some 
one  in  his  presence,  and  under  his  direction,  and  must 
be  signed  by  the  witness,  and  certified  by  the  com- 
missioner as  follows : 

"Examination  taken,  reduced  to  writing,  and  sworn 

to  (or  affirmed),  this day  of ,  A.  D.  188 — , 

before  me. 

.  Commissioner." 

Fourth.  Exhibits  must  be  annexed  to  the  deposi- 
tion of  the  witness,  and  be  signed  by  him  and  the 
commissioners. 

Fifth.  The  commissioner  must  subscribe  each  sheet 
of  the  deposition,  annex  the  deposition  and  exhibits  to 
the  commission,  and  endorse  his  return  on  the  back  of 
the  commission  : 

"  The  execution  of  this  commission  appears  in  cer- 
tain schedules  hereunto  annexed. 

— ,  (Commissioner" 

Sixth.  The  commissioner  must  inclose  the  commis- 
sion, interrogatories,  expositions  and  exhibits  in  a 
packet,  and  bind  it  with  tape,  and  set  his  seal  at  the 
several  meetings  or  crossings  of  the  tape,  and  direct  it 
"  To  the  Register  of  the  Circuit  Court  for  the  County 
of  Washtenaw  in  Chancery,  at  Ann  Arbor,  State  of 
Michigan." 

Seventh.  He  must  then  deposit  the  commission  in 
the  postoffice,  unless  there  are  written  directions  on 
the  commission  to  return  the  same  another  way. 

To  such  commission  are  annexed  the  interrogatories 
and  cross  interrogatories  upon  which  the  witnesses  are 
to  be  examined,  as  the  same  have  been  settled  by  the 
commissioner ;  e.  </., 

Direct  and  cross  interrogatories  to  be  administered 
to  the  witness  John  Felix  in  pursuance  of  the  com- 
mission annexed. 


A    SUIT    IN    EQUITY. 


DIRECT    INTERROGATORIES. 


First.  What  is  your  name,  age,  occupation  and 
place  of  residence? 

Second.  Do  you  know  the  complainant  and  defend- 
ant in  this  cause,  and  if  so,  how  long  have  you  known 
them  ? 

Third.     Do  you  know,  tfec,  &c. 

Lastly.  Do  you  know  or  can  you  set  forth  any 
other  matter  or  thing  which  may  in  any  wise  tend  to 
the  benefit  of  the  complainant  in  this  cause  ?  If  so, 
set  forth  the  same  and  all  the  circumstances  and  par- 
ticulars thereof,  according  to  the  best  of  your  knowl- 
edge, remembrance  and  belief,  with  your  reasons  at 
large. 

L.   G.,  Solicitor  for  Complainant. 

CROSS    INTERROGATORIES. 

First.  Did  you  during  the  month  of  October,  1885, 
reside  in  the  City  of  Sacramento  in  the  State  of  Cali- 
fornia? 

Second.  Did  you  during  the  month  of  October, 
1885,  and  about  the  15th,  see  the  complainants  at  the 
Park  Hotel  in  said  City  of  Sacramento? 

Third.  If  yon  answer  yes  to  the  second  cross  inter- 
rogatory above,  state  if  you  had  any  conversation  with 
said  complainant  at  said  time  and  place? 

Fourth.  If  you  answer  yes  to  the  third  cross  inter- 
rogatory above,  state  such  conversation  in  full. 

Fifth.  Did  not  the  complainant  say  to  you,  etc., 
&c. 

Lastly.  Do  you  know  or  can  you  set  forth  any 
other  matter  or  thing  which  may  in  any  way  tend  to 
the  benefit  of  the  defendant  in  this  cause?  If  so,  set 
forth  the  same  and  all  the  circumstances  and  particu- 
lars thereof  according  to  the  best  of  your  knowledge, 
remembrance  and  belief,  with  your  reasons  at  large. 

M.  M.,  Solicitor  for  Defendant. 


A    SUIT    IX    EQUITY.  30 

Upon  the  return  of  the  commission,  the  register  is 
required  to  open  and  endorse  upon  it  the  date  of  its 
receipt.  He  is  also  to  notify  the  solicitor  in  whose 
behalf  the  testimony  was  taken  of  its  receipt,  and  such 
solicitor  must  notify  the  opposite  solicitor.  If  there 
has  been  any  irregularity  or  informality  in  the  taking 
of  the  deposition  which  the  opposing  solicitor  wishes 
to  take  advantage  of,  he  must  to  do  so  by  making  a 
motion  to  suppress  the  deposition,  and  give  notice  of 
such  motion  to  the  other  solicitor  within  the  time  pre- 
scribed. 

Proofs  having  been  closed  and  the  testimony  taken 
filed  in  the  court,  the  cause  is  read)'  for  hearing  upon 
pleadings  and  proofs. 

NOTICE    OF    HEARING. 

Either  party  may  notice  the  cause  for  hearing. 
Such  notices  must  be  in  writing  and  served  upon  the 
opposing  solicitor;  e.  </., 

TITLE. 


Sir — Take  notice,  that  the  above  entitled  cause  will 
be  brought  on  for  hearing  at  the  next  term  of  said 
court,  on  pleadings  and  proofs  (or  on  bill  and  answer 
or  on  &c,  as  the  case  ma}7  be),  at  the  opening  of  the 
court  on  the  first  day  thereof,  or  as  soon  thereafter  as 
counsel  can  be  heard. 

Dated  this day  of . 

J.  K.,  Solicitor  for  Complainant. 
To  M.  M.,  Solicitor  for  Defendant. 


40  A    SUIT    IN    EQUITY. 

NOTE    OF    ISSUE. 

The  solicitor  noticing  the  cause  for  hearing  at  any 
term  of  court  must  furnish  the  register  with  a  note  of 
issue,  so  that  he  may  place  the  cause  on  the  court 
calendar.  Causes  in  equity  may  be  noticed  during 
term.  In  such  case  no  note  of  issue  need  be  given  ; 
e.  g., 


TITLE. 

The  above  entitled  cause  will  be  brought  on  for 
hearing  at  the  next  term  of  this  court,  notice  having 
been  served  on  the  part  of  the  complainant  on  M.  M., 
Esq.,  solicitor  for  defendant.  You  will  place  said 
cause  on  the  issue  docket  of  this  court.  This  cause 
belongs  to  the  4th  class  and  is  to  be  heard  on  pleadings 
and  proofs  and  is  entitled  to  priority  from  July  1, 
18S8. 

J.  K.,  Solicitor  for  Complainant. 
To  the  Register  of  said  court. 


HEARING    OF    THE    CAUSE. 

Upon  the  hearing  of  a  cause  the  rules  require  that 
the  court  shall  be  furnished  with  certain  abstracts  of 
the  proceedings.  Rules  62  and  65.  When  it  is  heard 
on  pleadings  and  proofs,  the  court  is  to  be  furnished 
by  the  complainant  with  a  statement  showing  when 
the  bill,  answer  and  other  pleadings  were  filed,  the 
names  of  the  original  parties  in  full,  the  change  of 
parties,  if  any  has  taken  place  pending  the  suit,  a  brief 
history  of  the  proceedings  in  the  cause  containing  an 
abbreviation  of  the  pleadings  not  exceeding  one-sixth 
of    the    folios    contained    in    the   original    pleadings 


A    SUIT    IN    EQUITY.  41 

respectively,  and  also  with  copies  of  the  pleadings 
and  of  the  depositions,  and  with  short  abstracts  of  the 
exhibits.  These  rules  are  not  enforced  in  many  of 
the  circuit  courts,  but  a  solicitor  alive  to  the  interests 
of  his  clients  will  not  disregard  them,  and  he  will,  in 
addition  to  what  the  rules  require,  furnish  the  court 
with  a  caref  ully  prepared  abstract  of  all  the  testimony 
in  his  favor,  containing  extracts  from  such  testimony 
with  references  to  the  page  of  the  proofs  on  file  from 
which  they  are  taken. 

CASE    AND    ABBREVIATIONS    OF    PLEADINGS. 


TITLE. 


The  bill  in  this  cause  was  iiled 

The  answer  was  tiled  — ■. 

The  replication  was  filed 


An  order  to  take  proofs  was  entered . 

The  following  witnesses  have  been  examined,  viz  : 
A.  B.,  C.  D.,  and  E.  F.,  on  the  part  of  complainant, 
and  A.  L.,  D.  M.,  and  P.  M.,  on  the  part  of  defendant. 

The  object  of  the  bill  is  to  (state  the  object  as 
shown  by  the  praj'er  for  relief).  , 

ABSTRACT    OF    PLEADINGS. 

Bill  states  that  (give  all  the  facts  charged  in  the 
stating  part  of  the  bill  in  as  condensed  a  form  as  pos- 
sible, and  by  paragraphs,  numbering  the  paragraphs  1, 
2,  3,  &c.)     Answer  on  oath  waived. 

ANSWER. 

1.  Admits  all  the  facts  in  paragraph  one  of  bill 
above  except,  &c. 

2.  Denies  that,  &c,  as  stated  in  paragraph  two,  but 
admits,  &c. 

A.  C. ,  Solicitor  for  Complainant. 


42  A    SUIT    IN    EQUITY. 

Upon  the  hearing  complainant  opens  the  argument. 
It  is  usual  for  the  court  to  request  the  solicitor  for 
complainant  to  give  a  statement  of  the  case  made  by 
the  bill  and  a  statement  of  the  testimony  sustaining 
the  complainant's  contention,  and  then  to  call  upon 
the  solicitor  for  defendant  to  make  a  brief  statement 
of  the  defence,  as  shown  by  the  pleadings  and  proofs. 
When  the  court  has  obtained  in  this  manner  a  clear 
conception  of  the  case  in  all  its  bearings,  the  regular 
argument  is  made  and  the  cause  submitted  to  the 
court.  At  the  time  the  cause  is  submitted,  or  on  some 
other  day,  the  court  announces  its  decision.  This 
decision  is  frequently  given  orally,  the  solicitors  being 
present.  Sometimes  a  written  memorandum  of  the 
decision  is  made  and  filed  by  the  court,  at  the  time  he 
announces  his  decision,  and  sometimes  the  register 
makes  a  minute  of  the  decision  in  his  minute-book. 
The  party  in  whose  favor  the  decision  is  made  then 
prepares  a  draft  of  such  a  decree  as  he  thinks  he  is 
entitled  to  in  accordance  with  the  terms  of  the  deci- 
sion, and  serves  a  copy  upon  the  other  solicitor,  who 
has  a  right  to  propose  amendments  to  it,  if  he  thinks 
proper  so  to  do.  The  draft  and  amendments,  if  any, 
are  then  submitted  to  the  court,  and  the  solicitors  are 
heard  upon  the  settlement  thereof. 

When  the  decree  has  been  settled  it  is  entered  by 
the  register  upon  the  journal.  It  is  considered  as 
entered  from  the  time  it  is  settled  and  filed  with  the 
register. 


A    SUIT   IN    EQUITY.  43 

A   DEOBEE    IX    EQUITY. 

Decrees  in  general  consist  of  three  parts:  1.  The 
date  and  title.  2.  The  recitals.  3.  The  ordering 
part,  to  which  is  sometimes  added  :  4.  The  declara- 
tory parti  When  this  latter  part  is  made  use  of,  it 
generall}'  precedes  the  ordering  part. 

The  decree  commences  with  the  name  of  the  court 
and  the  place  where  it  is  held,  the  term  at  which  it  is 
pronounced  and  the  title  of  the  cause.  It  was  the 
practice  at  one  time  to  recite  at  length  the  pleadings 
and  evidence  in  the  cause,  but  now  the  decree  merely 
recites  the  substance  of  the  pleadings  and  the  facts  on 
which  the  court  founds  its  judgment.  After  the 
recitals  comes  thp  ordering  or  mandatory  part  of  the 
decree,  containing  the  specified  directions  of  the  court 
upon  the  matter  before  it,  which,  it  is  obvious,  must 
depend  upon  the  nature  of  the  particular  case  which 
is  its  subject.  When  the  suit  seeks  a  declaration  of 
.the  right  of  the  parties,  the  ordering  part  of  the 
decree  should  be  prefaced  by  such  declaration. 

The  following  is  the  form  of  a  decree  as  formerly 
rendered  by  the  Court  of  Chancery  in  England: 


DATE    AND    TITLE. 


This  cause,  coming  on  this  day  to  be  heard  and 
debated  before  the  Honorable  the  Lord  High  Chan- 
cellor of  Great  Britain,  in  the  presence  of  counsel 
learned  on  both  sides,  the  substance  of  the  complain- 
ant's bill  seemed  to  be  that,  ifec.  (Here  the  complain- 
ant's bill  is  shortly  recited.)  Therefore,  that  the  said 
defendant  may  pay,  etc.  (the  prayer  of  the  bill),  and 


44  A    SUIT    IN    EQUITY. 

to  be  relieved,  is  the  scope  of  the  complainant's  bill ; 
whereto  the  counsel  for  the  defendant  alleged  that  he 
by  answer  admits,  etc.  (the  substance  of  the  answer 
stated) ;  whereupon,  and  upon  debate  of  the  matter, 
and  hearing  the  answers  of  the  defendants,  etc.,  and 
the  proofs  taken  in  this  cause  read,  and  what  was 
alleged  by  the  counsel  on  both  sides,  his  lordship 
declared  that,  etc  (the  decree  of  the  court). 

THURLOW  C. 
WINTER,  for  the  Complainant. 

DECREE   AND    ORDER   OF    SALE    IN    FORECLOSURE    OF 
MORTGAGE. 

The  following  is  the  usual  form  of  a  final  decree  and 
order  of  sale  in  tin's  State  in  a  suit  to  foreclose  a  mort- 
gage : 

State  of  Michigan — In  the  Circuit  Court  for  the 
County  of  Washtenaw — In  Chancery. 

C.  D..  -i 

Complainant, 

vs.  y 

D.  F.,  | 

Defendant.  J 

At  a  session  of  said  court  held  at  Ann  Arbor  on  the 
first  day  of  October,  one  thousand  eight  hundred  and 
eighty-eight. 

Present,  Hon.  C.  K.,  circuit  judge. 

This  cause  came  on  to  be  heard,  and  was  argued  by 
counsel ;  and  thereupon,  upon  consideration  thereof,  it 
was  ordered,  adjudged  and  decreed  as  follows,  viz.: 

On  reading  and  filing  the  report  of  L.  F.,  one  of 
the  circuit  court  commissioners  of  Washtenaw  county, 
which  report  bears  date  the  third  day  of  August  in 
in  the  year  one  thousand  eight  hundred  and  eighty- 
eight,  and  was  made  in  pursuance  of  an  order  of  this 
court  heretofore  made  in  this  cause,  referring  it  to 
one  of  the  circuit  court  commissioners  of  this  county 


A    SUIT    IN    EQUITY.  45 

to  compute  the  amount  due  to  the  complainant  on  the 

note  and  mortgage  mentioned  and  set  forth  in  the  bill 
of  complaint,  from  which  it  appears  that  there  was 
due  to  the  said  complainant  at  the  date  of  said  report, 
for  said  principal  and  interest  the  sum  of  three  thou- 
sand and  twenty  dollars,  and  on  reading  and  filing  the 
affidavit  of  B.  J.,  solicitor  for  complainant,  showing 
the  regularity  of  the  proceedings  in  this  cause,  to  take 
said  bill  of  complaint  as  confessed  ;  and  on  motion  of 
B.  J.,  counsel  for  the  complainant,  it  is  ordered, 
adjudged  and  decreed,  and  this  court,  by  virtue  of  the 
authority  therein  vested,  doth  order,  adjudge  and 
decree,  that  the  said  report,  and  all  things  therein 
contained,  do  stand  ratified  and  confirmed.  And  it  is 
further  ordered,  adjudged  and  decreed,  that  the 
defendant  pay  or  cause  to  be  paid  to  said  complainant 
or  to  B.  J.,  his  solicitor,  the  amount  so  reported  due 
as  aforesaid,  together  with  the  interests  and  costs,  on 
or  before  the  first  day  of  December,  in  the  year  one 
thousand  eight  hundred  and  eighty-eight,  and  in  de- 
fault thereof,  that  all  and  singular  the  said  mortgaged 
premises  mentioned  in  the  bill  of  complaint  in  this 
cause,  and  hereinafter  described,  or  so  much  thereof 
as  may  be  sufficient  to  raise  the  amount  due  to  the 
complainant  for  the  principal,  interest  and  costs  in 
this  case,  and  which  may  be  sold  separately  without 
material  injury  to  the  parties  interested,  be  sold  at 
public  auction,  by  or  under  the  direction  of  L.  F.,  one 
of  the  circuit  court  commissioners  of  this  county  at 
any  time  after  the  first  day  of  December  in  the  year 
one  thousand  eight  hundred  and  eighty-eight,  that  the 
said  sale  be  made  in  the  county  where  the  said  mort- 
gaged premises,  or  the  greater  part  thereof,  are  situ- 
ated ;  that  the  said  L.  F.  give  public  notice  of  the 
time  and  place  of  such  sale,  according  to  the  course 
and  practice  of  this  court,  and  that  the  complainant, 
or  any  of  the  parties  in  this  cause  may  become  the 
purchaser ;  that  the  said  L.  F.  execute  a  deed  to  the 


16  A    SUIT    IN    EQUITY. 

purchaser  or  purchasers  of  the  mortgaged  premises  on 
the  said  sale ;  and  that  the  said  L.  F.,  out  of  the  pro- 
ceeds of  said  sale,  pay  to  the  complainant,  or  his  solici- 
tor, costs  in  the  suit  to  be  taxed,  and  also  the  amount 
so  reported  to  be  due  as  aforesaid,  together  with  the 
legal  interest  thereon,  from  the  date  of  said  report,  or 
so  much  thereof  as  the  purchase  money  of  the  mort- 
gaged premises  will  pay  of  the  same ;  and  that  the 
said  L.  F.  take  the  receipt  for  the  amount  so  paid,  and 
rile  the  same  with  his  report ;  and  that  he  bring  the 
surplus  money  arising  from  said  sale,  if  any  there  be, 
into  court  without  delay,  to  abide  the  further  order 
of  this  court.  And  it  is  further  ordered,  adjudged 
and  decreed,  that  the  defendant  and  all  persons  claim- 
ing or  to  claim  from  or  under  said  D.  F.,  defendant, 
be  forever  barred  and  foreclosed  of  and  from  all 
equity  of  redemption,  and  claim  of,  in  and  to  said 
mortgaged  premises,  and  every  part  and  parcel  thereof. 
And  it  is  further  ordered,  that  the  purchaser  or  pur- 
chasers of  said  mortgaged  premises  at  such  sale,  be  let 
in  possession  thereof  ;  and  that  any  of  the  parties  of 
this  cause,  who  may  be  in  possession  of  said  premises, 
or  any  part  thereof,  and  any  person  who,  since  the 
commencement  of  this  suit,  has  come  into  possession 
under  them  or  either  of  them,  deliver  possession 
thereof  to  such  purchaser  or  purchasers,  on  produc- 
tion of  the  circuit  court  commissioner's  deed  for  such 
premises,  and  a  certified  copy  of  the  order  confirming 
the  report  of  such  sale,  after  such  order  has  become 
absolute.  And  it  is  further  ordered  and  decreed,  that 
if  the  moneys  arising  from  said  sale  shall  be  insuffi- 
cient to  pay  the  amount  so  reported  due  to  the  com- 
plainant with  interest  and  costs  and  expenses  of  sale 
as  aforesaid,  that  said  L.  F.,  circuit  court  commissioner, 
specify  the  amount  of  such  deficiency  in  his  report  of 
said  sale,  and  that  on  the  coming  in  and  confirmation 
of  said  report  the  defendant  D.  F.,  who  was  person- 
ally liable  for  the  debt  secured  by  said  mortgage,  pay 


A    SUIT    IN    EQUITY.  47 

to  the  complainant  the  amount  of  such  deficiency, 
with  interest  thereon  from  the  date  of  such  report, 
and  that  the  complainant  have  execution  therefor. 
The  description  and  particular  boundaries  of  the 
property  authorized  to  be  sold  under  and  by  virtue  of 
this  decree,  so  far  as  the  same  can  be  ascertained  from 
the  mortgage  above  referred  to  or  from  the  bill  of 
complaint  in  this  cause,  are  as  follows,  viz.:  Lot  one 
in  block  two,  according  to  the  original  plat  of  the  vil- 
lage, now  city,  of  Ypsilanti,  in  the  county  of  Washte- 
naw, according  to  the  recorded  plat  thereof  in  the 
register's  office  in  said  county. 

C.  K.,   Circuit  Judge. 

RECTIFYING    DECREES. 

After  the  court  has  formally  announced  its  decision 
and  until  the  decree  has  been  settled  and  entered, 
either  party  feeling  himself  aggrieved  may  move  the 
court  for  a  re-argument  of  the  cause  or  that  certain 
parts  of  the  decision  be  modified. 

After  the  decree  has  been  settled  and  entered  and 
before  it  is  enrolled,  either  party  may  petition  the 
court  for  a  re-hearing.  The  petition  must  state  par- 
ticularly the  objections  which  are  conceived  to  lie 
against  the  decree,  that  the  court  may  be  competent  to 
decide  upon  the  propriety  of  the  application ;  and  if 
the  whole  decree  is  objected  to,  the  case  of  the  peti- 
tioner and  the  decretal  part  of  the  order  are  shortly 
set  forth,  and  an  intimation  is  given  of  the  decree 
which  the  petitioner  is  advised  ought  to  be  entered. 
If  any  of  the  facts  stated  in  the  petition  do  not  appear 
on  the  records  of  the  court,  they  must  be  verified  bv 
affidavit.     The  petition  for  re-hearing  must  be  accom- 


48  A    SUIT    IN    EQUITY. 

panied  by  the  certificate  of  two  counsel,  setting  forth 
that  they  have  examined  the  case,  and  that  in  their 
opinion  the  decree  is  erroneous  for  the  reasons  stated. 
This  precaution  is  taken  as  a  security  that  the  appli- 
cation is  not  made  for  the  purpose  of  delay  merely. 

AFTEE    ENROLLMENT. 

The  general  rule  is  that  a  decree  regularly  obtained 
and  enrolled  cannot  be  altered  except  by  a  Bill  of 
Review. 

COSTS. 

It  is  a  general  doctrine  of  courts  of  equity  that 
costs  are  entirety  in  the  discretion  of  the  court,  to  be 
awarded  or  withheld  according  to  the  equity  of  each 
particular  case.  This  discretion  is  not  a  mere  whim- 
sical one,  however,  but  is  based  upon  certain  fixed 
principles,  and  as  a  general  rule  the  prevailing  party 
is  entitled  to  costs.  When  a  party  is  entitled  to  costs, 
he  must  apply  for  them  and  have  their  payment  made 
a  part  of  the  order  or  decree.  When  a  definite  sum 
is  allowed,  as  on  overruling  a  motion,  no  further  pro- 
ceedings are  necessary  to  fix  the  liability  of  payment 
upon  the  party  against  whom  the  costs  are  given.  In 
final  decrees  the  order  is  usually  upon  payment  of 
costs  to  be  taxed.  In  that  case  the  party  in  whose 
favor  the  costs  are  to  be  allowed  makes  out  a  taxed 
bill  of  costs  which  he  thinks  he  is  entitled  to,  verified 
by  affidavits,  serves  a  copy  upon  the  solicitor  of  the 
opposing  party,  with  notice  that  application  will  be 
made  to  the  register  to  have  the  same  taxed  at  a  cer- 


A    SUIT    IN    EQUITY.  49 

tain  time  and  place.     At   such   time  and  place  the 
costs  are  taxed  by  the  register. 

TAXED    BILL    OF    COSTS. 


TITLE  OF    CAUSE  AND    COURT. 


COMPLAINANT  S  BILL   OF   COSTS. 

Solicitor  fee  by  rule $30  00 

Sheriff's  fees 10  00 

Register's  fees 15  00 

Circuit  Court  Commissioner's  fees 28  00 

Witness  fees,  viz. : 

A.  B.,  2  days  and  20  miles  travel $4  00 

C.  D.,  1  day  and  10      "        "       2  00 

L.  G.,  5  days  and  30     "        "       8  00—14  00 

$97  00 
STATE  OF  MICHIGAN.  }  OQ 
Washtenaw  County.      > 

L.  C,  being  duly  sworn,  says  that  he  is  the  solicitor 
for  the  complainant  in  the  above  entitled  cause,  and 
that  the  several  items  of  disbursement  and  fees  of  offi- 
cers of  the  court,  charged  in  the  foregoing  bill  of  costs, 
have  been  actually  and  necessarily  incurred  or  paid, 
according  to  his  best  information  or  belief. 

L.  C 

Subscribed  and  sworn  to  before  me  this day 

of ,188—. 

X.  Y.,  Notary  Public. 

ENROLLMENT    OF   DECREE. 

The  decree  is  enrolled  in  the  following  manner : 
The  register  of  the  court  in  which  the  decree  is  entered 
attaches  together  the  bill,  pleadings  and  such  other 
papers  as  the  general  rules  direct,  together  with  the 
taxed  bill  of  costs  therein,  and  annexes  thereto  a  fair 
engrossed  copy  of  the  decretal  order,  signed  by  the 

4 


50  A    SUIT    IN    EQUITY. 

circuit  judge  and  countersigned  by  the  register  who 
entered  the  same.  The  register  then  annexes  to  the 
papers  so  attached  together  his  certificate,  under  the 
seal  of  the  court,  wherein  he  certifies  according  to  the 
fact,  the  time  when  the  papers  were  attached  together, 
for  the  purpose  of  enrollment,  and  the  names  of  the 
parties  at  whose  instance  the  same  was  done. 

BILL    OF    REVIEW. 

If,  after  the  enrollment  of  the  decree,  any  new 
matter  of  j  evidence  be  discovered,  which  could  not 
have  been  had  or  used  when  the  decree  was  rendered, 
or  if  any  apparent  error  of  judgment  appear  on  the 
face  thereof,  it  may  be  reconsidered  by  means  of  a 
bill  of  review. 

When  the  bill  of  review  is  founded  upon  errors 
apparent  on  the  face  of  the  decree,  it  may  be  filed 
without  leave  of  the  court.  When  it  is  founded  upon 
newly  discovered  evidence,  leave  of  the  court  must  be 
first  obtained,  and  such  leave  will  be  given  or  withheld 
in  the  discretion  of  the  court. 

This  bill  must  recite  the  former  bill  and  the  pro- 
ceedings had  under  it  and  the  former  decree  of  the 
court.  If  it  is  founded  upon  error  apparent  on  the 
face  of  the  decree,  such  error  is  specifically  pointed 
out.  If  upon  facts  which  have  come  to  light  since 
the  hearing,  those  facts  are  stated,  and  when  and  how 
they  come  to  the  knowledge  of  the  complainant,  after 
which  it  is  usual  to  add,  just  before  the  prayer  for 
subpu'na : 


A    SUIT    IX    EQUITY.  51 

"  For  all  which  errors  and  imperfections  in  the  said 
decree,  your  orator  has  brought  this  his  hill  of  review, 
and  humbly  conceives  he  should  be  relieved  therein. 
In  tender  consideration  whereof,  and  for  that  there  are 
divers  other  errors  and  imperfections  in  said  decree 
and  proceeding,  by  reason  whereof  the  same  ought  to 
be  reviewed  and  reversed,  added  to,  altered  and 
amended,  and  that  the  said  0.  D.  may  answer  the 
premises,  and  that  your  orator  may  be  relieved  in  all 
and  singular  therein,  according  to  equity  and  good 
conscience. 

May  it  please,  etc." 

Besides  bills  of  review,  there  are  two  other  classes 
of  bills  which  are  exhibited  subsequently  to  a  decree, 
namely :  Bills  to  impeach  a  decree  on  account  of 
fraud,  and  bills  to  carry  decrees  into  execution.  If  a 
decree  has  been  obtained  by  fraud,  it  may  be  im- 
peached by  an  original  bill  without  the  leave  of  the 
court,  because  the  fraud  used  in  obtaining  the  decree 
being  the  principal  point  at  issue,  and  necessary  to  be 
established  by  proof  before  the  propriety  of  the  decree 
can  be  investigated.  When  a  decree  has  been  thus 
obtained,  the  court  will  restore  the  parties  to  their 
original  situation,  whatever  their  rights  may  be.  The 
prayer  of  such  a  bill  must  be  varied  to  meet  each  case 
— especially  if  the  decree  has  been  executed. 

Sometimes  from  the  neglect  of  the  parties,  or  other 
reason,  it  becomes  impossible  to  carry  a  decree  into, 
execution  without  the  further  order  of  the  court. 
This  happens,  generally,  when  the  rights  of  parties 
under  the  decree  have  become  so  entangled  and  embar- 
rassed, from  their  neglect  to  proceed  under  it,  by  sub- 


52  A    SUIT    IN    EQUITY. 

sequent  events,  that  it  is  necessary  to  have  a  decree 
of  the  court  to  settle  and  ascertain  them.  This  is 
obtained  by  filing  a  bill  in  the  nature  of  an  original 
bill  to  carry  into  execution  the  former  decree.  The 
■court  in  such  cases  merely  determines  in  what  manner 
the  former  decree  shall  be  executed,  so  as  to  do  equity 
to  all  the  parties. 

APPEALS. 

There  is  usually  a  court  to  which  the  party,  who 
-deems  himself  aggrieved  by  the  decree  of  the  court 
in  which  the  suit  is  commenced,  may  appeal,  and  if 
both  parties  desire,  both  may  appeal.  In  this  State 
an  appeal  is  taken  from  the  Circuit  Court  in  Chan- 
cery to  the  Supreme  Court.  This  is  a  purely  statu- 
tory right,  and  the  provisions  of  the  statute  must  be 
strictly  complied  with. 

Notice  of  claim  of  appeal  is  to  be  filed  with  the 
register,  together  with  the  bond  provided  for  in  the 
statute,  and  notice  that  an  appeal  has  been  taken 
served  upon  the  opposite  solicitor.  When  the  appeal 
has  been  perfected,  the  register  transmits  the  records 
to  the  Supreme  Court. 

In  the  Supreme  Court  no  further  proof  is  taken, 
but  the  cause  is  heard  there  upon  the  same  pleadings 
or  pleadings  and  proofs  as  were  before  the  Circuit 
.Court,  when  it  made  the  final  order  or  decree  from 
which  the  appeal  was  taken. 

The  practice  in  the  Supreme  Court  and  the  enforce- 
ment of  a  decree,  its  execution,  we  do  not  examine, 
but  close  our  analysis  of  a  suit  in  equity  at  this  stage 
of  the  proceedings. 


EQUITY  PLEADING  AND  PRACTICE 

LECTURE  I. 


PARTIES    TO    A    SUIT    IN    EQUITY. 

It  is  necessary  for  the  pleader  to  determine,  first  of 
all,  what  persons  he  shall  make  parties  to  the  bill.  It 
is  a  rule  of  law,  recognized  by  all  courts,  that  no  one's 
rights,  either  of  person  or  property,  shall  be  adjudi- 
cated unless  he  is  present  in  court.  Every  one  is 
entitled  to  be  heard,  to  have  his  day  in  court.  It  fol- 
lows, therefore,  from  this  rule  that  every  person 
against  whom  the  pleader  desires  to  obtain  a  personal 
decree,  that  is  a  decree  requiring  him  to  do  or  to  refrain 
from  doing  some  particular  act,  must  be  made  a  party. 
Again  a  court  of  equity  insists  that  all  persons  whose 
interests  will  be  affected  adversely  by  the  decree  shall 
be  before  the  court,  to  the  end  that  one  litigation  may 
put  at  rest  forever  the  controversy  in  all  its  ramifica- 
tions. Combining  these  two  rules  we  have  the  gen- 
eral rule  as  to  the  proper  parties  to  a  suit  in  equity. 
UA11  persons  having  an  interest  in  the  subject  and 
object  of  the  suit,  and  all  persons  against  whom  relief 
must  be  obtained  in  order  to  accomplish  the  object  of 
the  suit,  must  be  made  parties." 

[531 


54  EQUITY    PLEADING    AND    PRACTICE. 

Stevenson  v.  Austin,  3  Met.  474,  480;  West  v.  Randall,  2 
Mason  181;  Walkins  v.  Worthington,  2  Bland  509;  Russell  v. 
Clark,  7  Cranch  74;  Williams  v.  Bankhead,  19  Wal.  563;  McAr 
thur  v.  Scott,  113  U.  S.  340. 

The  parties  to  a  suit  in  equity  are  styled  plaintiffs 
and  defendants  as  at  law,  but  while  at  law  the  inter- 
ests of  all  the  plaintiffs  is  adverse  to  that  of  all  the 
defendants,  in  equity  the  interest  of  the  party  does  not 
determine  the  question  as  to  whether  he  is  plaintiff  or 
defendant.  It  frequently  happens  that  some  of  the 
defendants  to  a  suit  have  interests  which  are  identical 
with  those  of  some  of  the  plaintiffs.  It  is  desirable 
that  all  the  persons  having  interests  that  will  be 
affected  in  the  same  manner  should  be  arranged  on  the 
same  side,  but  it  is  far  from  necessary,  and  if  any  per- 
son whose  natural  position  is  among  the  plaintiffs  re- 
fuses to  so  appear  he  can  be  made  a  defendant,  and 
the  fact  that  he  is  a  defendant  will  not  affect  his 
rights.  The  court  in  ascertaining  and  determining 
the  rights  and  interests  of  the  several  parties  to  the 
controversy  does  so  without  considering  at  all  the  fact 
as  to  whether  they  are  plaintiffs  or  defendants. 

Contee  v.  Dawson,  2  Bland  264,  292 ;  Fawkes  v.  Pratt,  1  Pere 
Wm.  593;  Bedford  v.  Leigh,  1  Dickens  707. 

"  All  persons  having  an  interest  in  the  subject-matter 
of  the  suit"  refers  to  those  having  an  interest  which 
will  be  affected  by  the  decree  rencfered. 

Mich.  State  Bank  v.  Gardner,  3  Gray  305,  308. 

The  court  will  in  its  discretion,  modify  the  rule 
that  all    persons   having  an    interest   in    the    subject- 


EQUITY    PLEADING    AND    PRACTICE.  55 

matter  must  be  made  parties  when  its  strict  enforce- 
ment would  be  equivalent  to  denying  relief  alto- 
gether. 

Wendell  v.  Van  Rensselaer,  1  Johns.  Ch.  344,  349;  Hallettv.Hal- 
lett,  2  Paige  15;  Cullen  v.  Duke  of  Queensbury,  1  Br.  C.  C.  101; 
Whitney  v.  Mayo,  15  111.  251;  Society  for  the  Propagation  of  the 
Gospel  v.  Hartland,  2  Paine  C.  C.  536. 

When  it  appears  that  one  or  more  who  of  right 
ought  to  be  made  parties,  are  out  of  the  jurisdiction 
of  the  court,  or  that  making  them  parties  would  oust 
the  court  of  jurisdiction,  the  court  may  proceed  with- 
out their  presence,  provided  the  interests  of  those 
made  parties  are  such  that  the  controversy  can  be 
satisfactorily  determined  as  to  them,  without  prejudic- 
ing the  rights  of  those  not  made  parties. 

Mulligan  v.  Melledge,  3  Cranch  220;  Elmendorf  v.  Taylor,  10 
Wheat.  152 ;  Mallow  v.  Hinde.  12  Wheat.  193  ;  Payne  v.  Hook, 
7  Wall.  425 ;  Bank  v.  Campbell,  14  Wall.  87  ;  Story  v.  Living- 
stone, 13  Pet.  359. 

And  when  the  parties  on  either  side  are  very  numer- 
ous, and  cannot,  without  inconvenience  and  delay,  be 
all  brought  in,  the  suit  may  proceed  if  all  the  adverse 
interests  are  sufficiently  represented  by  the  parties 
before  the  court. 

Mandeville  v.  Riggs,  2  Pet.  482;  Williams  v.  Bankhead,  19 
Wall.  563;  Robinson  v.  Smith,  3  Paige  222. 

When  parties  who  are  known  to  be  interested  in  the 
suit  are  not  made  parties  to  the  bill,  the  reason  for 
not  making  them  parties  should  be  set  forth,  because 
if  the  interest  of  those  not  made  parties  is  such  that 
a  final    decree    cannot    be    made  without  injuriously 


56  EQUITY    PLEADING    AND    PRACTICE. 

affecting  their  interests,  the  court  will  require  them 
to  be  made  parties,  and  if  that  cannot  be  clone  the" bill 
will  be  dismissed. 

Riddle  v.  Mandeville,  5  Cranch  322;  Russell  v.  Clark,  7 
Cranck74:  Marshall  v.  Beverly,  5  Wheat.  313;  Mallow  v.  Hinde, 
12  Wheat.  193;  Barney  v.  Baltimore,  6  Wall.  280;  Bank  v.  Rail- 
road, 11  Wall.  624;  Bank  v.  Campbell,  14  Wall.  87;  Ribon  v. 
Railroad,  16  Wall.  446;  Ober  v.  Gallagher,  93  U.  S.  199;  Cassidy 
v.  Shimin,  122  Mass.  406;  McPike  v.  Wells,  54  Miss.  136;  Tyler 
v.  Peatt,  30  Mich.  63. 

Persons  incapable  of  instituting  suits  for  themselves 
may  sue  by  guardian  or  prochein  ami,  and  the  court 
will  appoint  a  guardian  ad  litem  to  defend  a  suit  on 
behalf  of  such  a  person. 

U.  S.  Rule  87;  Puterbaugh  Ch.  Pr.,  Chap.  40,  §  1. 

To  illustrate  the  rule  as  to  parties,  take  the  case  of 
the  foreclosure  of  a  mortgage.  1.  All  persons  against 
whom  a  personal  decree  is  desired  must  be  made  par- 
ties ;  that  is,  the  maker  of  the  note,  the  mortgage  was 
given  to  secure  and  other  persons  liable  upon  the  note 
as  endorsers,  &c.  2.  All  persons  who  have  a  right  to 
redeem  from  the  mortgage  lien  must  be  made  parties  ; 
that  is,  all  who  have  any  interest  in  the  premises  cov- 
ered by  the  mortgage,  and  all  who  hold  liens  upon 
them  created  subsequent  to  the  mortgage  being  fore- 
closed. 

Cummings  v.  Fearey,  44  Mich.  39,  44;  McGown  v.  Yerks,  6 
Johns.  Ch.  450;  Reed  v.  Marble,  10  Paige  409;  Goodenow  v. 
Ewer,  16  Cal.  461. 

And  it  has  been  held  that  prior  incumbrancers  are 
proper  although  not  indispensable  parties. 


EQUITY    PLEADING    AND    PKACTIOE.  57 

Haines  v.  Beach,  3  Johns.  Ch.  459;  Finley  v.  Bank,  11  Wheat. 
304. 

In  a  partition  suit,  all  persons  having  an  interest  in 
the  premises,  whether  in  possession  or  otherwise,  even 
a  dower  interest,  which  has  not  been  admeasured, 
must  be  made  a  party. 

Striker  v.  Mott,  2  Paige  Ch.  387. 

In  proceedings  to  enforce  a  mechanics'  lien,  all  per- 
sons having  interests  in  the  property  affected  or  to  be 
affected  by  the  lien,  and  all  persons  holding  like  liens 
must  be  made  parties. 

Loniax  v.  Dore,  45  111.  379;  Raymond  v.  Ewing,  26  111.  329. 

Parties  to  a  suit  are  sometimes  designated  as  nom- 
inal, proper  or  necessary,  and  indispensable.  A 
nominal  party  is  one  who  has  no  legal  or  equitable 
interest  to  be  affected  by  the  decree,  but  who  stands 
in  such  a  relation  to  some  of  the  other  parties  that  he 
is  made  a  party  for  the  sake  of  conformity. 

A  proper  or  necessary  party  is  one  who  has  such  an 
interest  in  the  suit  that  he  should  be  made  a  party  to 
enable  the  court  to  adjust  all  the  rights  involved. 

An  indispensable  party  is  one  whose  interests  are 
such  that  a  decree  cannot  be  made  without  affecting 
him. 

Tobin  v.  Walkinshaw,  1  McAllister  26,  31 ;  Shields  v.  Barrow, 
17  Howard  130,  139. 

The  distinction  between  an  interest  in  the  suit  and 
an  interest  in  the  subject-matter  of  the  suit,  must  be 
borne  in  mind.     One  may  have  an    interest  in    the 


58  EQUITY    PLEADING   AND   PRACTICE. 

subject-matter  of  the  suit  and  have  no  interest  in  the 
suit ;  but  having  an  interest  in  the  suit  presupposes 
an  interest  in  the  subject-matter.  For  example,  sup 
pose  A  and  B  both  claim  title  to  a  parcel  of  land,  one 
from  the  National  and  the  other  from  the  State  gov- 
ernment, and  that  several  persons  are  interested  as 
mortgagees  or  otherwise  under  A,  and  others  are 
interested  in  like  manner  under  B.  Now,  to  a  suit 
involving  the  conflicting  titles  of  A  and  B,  both  A 
and  B  and  all  the  persons  interested  under  either  of 
them  are  necessary  parties,  but  in  a  suit  for  the  fore- 
closure of  a  mortgage  given  by  A,  neither  B  nor  any 
person  claiming  under  him  is  a  proper  party,  because 
the  foreclosure  of  A's  mortgage  does  not  affect  B  or 
any  one  claiming  under  him. 

You  must,  therefore,  in  determining  who  ought  to 
be  made  parties  to  a  particular  suit,  ascertain  first  who 
are  interested  in  the  subject-matter,  and  secondly, 
which  of  those  so  interested  will  be  affected  by  the 
decree  you  hope  to  obtain.  The  latter  are  to  be  made 
parties  and  they  only.  If  you  make  the  others  par- 
ties, there  will  be  a  misjoinder. 

"When  the  pleader  is  in  doubt  as  to  whether  or  not 
a  particular  person  is  a  proper  party,  it  is  advisable  to 
omit  him,  since  if  it  should  be  found  afterwards  that 
he  is  a  necessary  party  he  may  be  added.  '  And  if 
such  a  person  is  made  a  party  in  the  first  instance,  he 
should  be  made  a  party  defendant  rather  than  com- 
plainant. When  parties  are  improperly  joined  as 
complainants,  the  misjoinder  is  usually  fatal,  but  when 


EQTJITT     PLEADING    AND    PKACTICE.  59 

there  has  been   a  misjoinder  of  defendants,  the  suit 
wiil   usually  be  dismissed   as   to    those   who  are  not 
proper  parties  and  proceed  as  to  the  others. 
Daniel  Ch.  Pr.,  Chap.  5. 

MULTIFARIOUSNESS. 

Not  all  persons  whose  interests  will  be  affected  by 
the  decree  are  indispensable  parties,  and  they  are  not 
always  proper  parties.  The  rule  that  the  whole  of  a 
given  controversy  must  be  determined  in  one  pro- 
ceeding is  limited  by  another  rule  which  prohibits 
uniting  in  one  suit  two  or  more  causes  of  action. 
For  example,  suppose  A  is  about  to  erect  on  a  stream 
a  mill-dam  which  B  claims  will  necessarily  cause  the 
water  to  overflow  a  portion  of  his  lands  above  the  dam, 
and  C  claims  that  such  dam  will  necessarily  interfere 
with  his  rights  in  the  stream  below  the  dam.  Both 
B  and  C  desire  that  A  should  be  enjoined  from  erect- 
ing such  dam,  and  both  are  interested  in  and  will  be 
affected  by  a  suit  instituted  for  that  purpose,  but  they 
may  not  unite  in  a  bill  filed  to  enjoin  A  from  erecting 
such  dam,  for  the  reason  that  there  are  two  separate 
and  distinct  contentions,  and  the  flooding  of  B's  land 
above  the  dam  has  no  connection  with  C's  rights  in 
the  stream  below  the  dam.  They  must  bring  separate 
suits,  and  if  they  join  in  the  same  bill  it  is  said  to  be 
multifarious. 

1  Don.  Ch.  Pr.  382,  note. 

Again,  suppose  there  are  several  persons  having 
land  in  the  same  situation  as  B,  which  will  be  affected 


60  EQUITY    PLEADING    AND    PRACTICE. 

by  the  proposed  dam  in  the  same  manner,  they  are  all 
proper  parties  complainant,  having  all  the  same 
plaint,  but  they  are  not  required  to  unite,  and  if  any 
of  them  refuse  to  do  so  they  may  not  be  made  parties 
defendant,  for  this  reason,  that  they  have  no  interest 
in  the  other  lands  flooded,  and  as  to  their  own  lands 
they  may  not  be  compelled  to  litigate.  The  subject- 
matter  of  the  controversy  is  the  effect  of  the  dam 
upon  the  lands  mentioned  in  the  bill,  and  its  effect 
upon  other  lands  is  outside  the  record. 

Judge  Campbell,  of  this  State,  has  given  the  fol- 
lowing rule  as  to  multifariousness:  "The  general 
rule  of  equity  is  that  every  several  grievance  must  be 
redressed  by  a  several  proceeding.  The  only  recog- 
nized exception  to  it  (and  they  are  considerably  quali- 
fier!) are  instances  where  there  is  a  single  right  asserted 
on  one  side  which  affects  all  the  parties  on  the  other 
side  in  the  same  way,  or  a  single  wrong  which  falls  on 
them  all  simultaneously  and  together.  The  instances 
which  are  most  familiar  are  rights  in  common  which 
are  resisted  by  the  owner  of  the  estate  which  is 
charged,  tax  rolls  assessing  all  parties  on  an  equal  ratio, 
frauds  by  trustees  affecting  all  the  cestius  que  trustent, 
and  the  like.  *  *  *  *  If  there  is  any  distinction 
in  the  proportion  or  character  of  the  several  griev- 
ances, there  can  be  no  joinder." 

"When  the  cause  of  grievance  does  not  arise  out  of 
the  same  wrong,  affecting  all  at  once  as  well  as  simi- 
larly, there  is  no  foundation  for  such  joinder." 


EQUITY    PLEADING    AND    PRACTICE.  61 

Winslow  v.  Jenness,  64  Mich.  84-87;  Kerr  v.  Lansing,  17  Mich. 
34;  Walsh  v.  Varney,  38  Mich.  73;  Bigelow  v.  Booth,  39  Mich. 
622;  Woodruff  v.  Young,  43  Mich.  548;  Brunner  v.  Bay  City,  46 
Mich.  236;  Jones  v.  Garcia  Del  Reo,  1  Turn.  &  R.  297;  Yeaton 
v.  Lennox,  8  Pet.  123. 

One  of  the  instances  mentioned  by  Judge  Camp- 
bell is  that  of  several  taxpayers  who  may  unite  when 
a  particular  tax  lias  been  assessed  against  all  of  them 
upon  the  same  roll  upon  the  same  basis.  But  in  this 
class  of  cases  they  must  not  only  have  a  common 
grievance,  but  that  common  grievance  must  be  the 
result  of  the  same  facts  and  circumstances.  They 
must  not  only  all  object  to  the  same  tax,  but  they 
must  have  one  common  objection.  For  instance,  if  it 
is  a  tax  levied  for  the  cost  of  some  public  improve- 
ment, a  paving  tax,  ditch  tax,  or  the  like,  the 
irregularity  complained  of  must  affect  them  all  alike. 
One  cannot  complain  of  one  irregularity  which  makes 
the  tax  void  as  to  him,  and  another  of  some  other 
irregularity  which  makes  the  tax  void  as  to  him.  If 
each  has  a  separate  grievance,  although  it  goes  to  the 
whole  tax  or  to  some  part  of  the  tax,  each  must  bring 
a  separate  suit. 

Kerr  v.  Lansing,  17  Mich.  34;  Barker  v.  Vernon,  63  Mich.  516- 
519;  Scofield  v.  Lansing,  17  Mich.  437;  Sherlock  v.  Wenitka,  59 
111.  389. 

A  bill  is  not  multifarious  because  it  unites  several 
parties  as  defendants,  each  of  whom  is  not  interested 
in  the  whole  of  the  subject-matter  of  the  suit.  As 
when  a  bill  is  filed  against  several  persons,  for 
instance,  for  an  accounting  for  a  stock  of  goods  which 


62  EQUITY    PLEADING    AND    PRACTICE. 

one  of  the  defendants  has  fraudulently  disposed  of  to 
the  others,  who  had  knowledge  and  were  parties  to 
the  fraud. 

Ingersoll  v.  Kerby,  Walk.  Ch.  65;  Blake  v.  Van  Tilbury,  21 
Wis.  679;  Fellows  v.  Fellows,  4  Cow.  682;  BrinkerhofI  v.  Brown, 
6  Johns.  Ch.  139;  Salvidge  v.  Hyde,  5  Madd.  138. 

X 

A  bill  filed  for  a  partition  of  land  between  tenants 

in  common  is  not  multifarious,  because  it  asks  for  an 

accounting  as  to  the  property   and   that  a   tax  title 

obtained  by  one  of  the  tenants  for  a  tax  levied  while 

the  land  was  owned  in  common. 

Page  v.  Webster,  8  Mich.  263;  Williams  v.  Gray,  3  Greenl. 
207;  Overton  v.  Woolfolk,  6  Dana,  374;  Woodruff  v.  Young,  43 
Mich.  548. 

When  several  persons  hold  each  a  separate  and  dis- 
tinct claim  of  title  to  a  parcel  of  ground,  one  of  them 
tiling  a  bill  to  quiet  title  cannot  unite  the  others  in 
the  same  bill  as  defendants;  but  if,  before  the  suit  is 
commenced,  the  others  should  have  each  conveyed 
his  title  to  some  one  person,  then  all  these  several 
titles, .or  claims  to  title,  could  be  litigated  in  the  same 
suit. 

Hunter  v.  Piatt,  11  Mich.  264;  Blackwood  v.  Van  Vleet,  11 
Mich.  252;  Woods  v.  Monroe,  17  Mich.  237;  Finch  v.  Martin, 
19  111.  105.  Contra,  Alterauge  v.  Christiansen,  48  Mich.  60; 
Hammontree  v.  Lott,  40  Mich.  190-193. 

To  determine  whether  a  bill  is  multifarious,  you 
must  look  to  the  stating  part  and  not  to  the  prayer. 
The  prayer  may  ask  for  separate  and  distinct  relief, 
only  a  part  of  which  the  plaintiff  is  entitled  to  under 
the  case  made  in  his  bill. 


EQ1  m    PLEADING    AND    PRACTICE.  63 

Hammond  v.  Bank,  Walk.  Ch.  214,  247. 

If  the  defendant  thinks  that  a  bill  is  multifarious, 
and  he  desires  to  take  advantage  of  that  defect,  he 
should  demur,  for  if  he  answers,  and  the  objection  is 
made  for  the  first  time  at  the  hearing,  the  court  will 
act  wholly  upon  its  own  judgment  as  to  whether, 
under  the  pleadings  and  proofs,  a  decree  can  conveni- 
ently, be  made  which  will  readily  settle  the  adverse 
interests  of  all  the  parties.  The  proofs  may  have 
eliminated  the  objection  altogether.  And  the  court 
will,  after  the  proofs  are  taken,  dispose  of  the  whole 
matter  upon  the  merits  rather  than  submit  litigants 
to  further  expense  and  delay. 

Ryan  v.  Shawneetown,  14  111.  20;  Burnett  v.  Lester,  53  111. 
325;  Beach  v.  Shaw,  57  111.  17;  Greenwood  v.  Churchill,  1  Myl. 
&  K.  546;  Olion  v.  Piatt,  3  How.  Sup.  Ct.  333;  Nelson  v.  Hill, 
5  How.  (U.  S.)  127;  Campbell  v.  McKay,  1  Mylne  &  Craig  003, 
618,  624;  Chew  v.  Bank,  14  Md.  299;  Bartlett  v.  Boyd,  34  Vt. 
256:  Hoggart  v.Uutts,  1  Craig  &  Phil.  204,  205. 


64  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  II. 


CHANCERY    PLEADINGS    AND    PRACTICE 

By  chancery  pleadings  we  understand  the  written 
allegations  of  the  respective  parties;  the  plaintiff's 
statement  of  the  facts  upon  which  he  relies  in  order 
to  obtain  the  aid  of  the  court,  and  the  defendant's 
reply  thereto,  his  defence. 

By  the  practice  of  the  court  we  are  to  understand 
all  of  the  various  proceedings  in  the  suit,  outside  the 
pleadings,  from  its  commencement  to  its  final  deter- 
mination. In  theory  and  upon  principle,  pleadings 
and  practice  are  entirely  separate  and  distinct,  and 
that  fact  should  be  continually  kept  in  mind,  but  since 
in  the  conduct  of  a  suit,  there  is  necessarily  a  step 
taken  in  pleading  followed  by  one  in  practice,  it  will 
be  more  convenient  and  satisfactory  to  consider  plead- 
ings and  practice  together,  as  questions  touching  the 
one  or  the  other  naturally  arise  in  the  conduct  of  a 
suit. 

THE    FRAME    OF    THE    BILL. 

Before  noticing  the  different  parts  of  the  bill  it  may 
be  said  generally,  that  the  whole  bill  should  be  drawn 
with  the  utmost  care.  All  the  facts  necessary  to  be 
set  forth  at  all  should  appear  clothed  in  language  sim- 
ple, precise  and  certain,  omitting  nothing  which  ought 
to  be  said  and  stating  nothing  which  ought  to  have 


EQUITY    PLEADING    AND    PRACTICE.  65 

been  omitted.  Speaking  of  the  degree  of  certainty 
with  which  the  allegations  in  the  bill  must  be  made, 
Justice  Story  says  "  that  there  are  three  kinds  of  cer- 
tainty applicable  to  different  parts  of  the  pleadings; 
the  first  kind  is  certainty  to  a  common  intent,  and  that 
is  sufficient  as  a  bar,  which  is  sufficient  to  defend  a 
party,  and  to  excuse  him.  The  second  is,  certainty  to  a 
certain  intent  in  general,  as  in  counts,  replications  and 
other  pleadings  of  the  plaintiff;  that  is,  to  convict  the 
defendant  as  in  indictments,  etc.  The  third  is,  cer- 
tainty to  a  certain  intent  in  every  particular,  as  in 
estoppels,  which  are  odious  in  the  law." 

Story  Eq.  PI.  §240;  Co.  Litt.  303  a. 

It  is  somewhat  difficult  to  clearly  distinguish  these 
different  degrees  of  certainty  from  each  other  and 
especially  to  indicate  clearly  the  distinction  betwi 
the  first  and  second  which  are  often  confounded  both 
by  text  writers  and  courts.  There  is  a  certainty  to  a 
common  intent,  when  the  usual  meaning  of  the  words 
used  convey  to  the  ordinary  mind  a  clear  statement  of 
a  fact,  although  the  same  words  may  also  have  an 
artificial  meaning. 

Dovastin  v.  Payne,  2  H.  Black  530. 

It  is  a  rule  of  construction.  Do  the  words  used 
express  a  clear  and  well  defined  idea,  or  is  their  mean- 
ing uncertain  or  ambiguous?  If  there  is  uncertainty 
or  ambiguity  they  are  not  certain  to  a  common  intent. 
As  an  illustration  a  suit  of  replevin  was  brought  for 
certain  cattle.     There  was  an  avowry  on  the  part  of 


66  EQUITY    PLEADING    AND    PRACTICE. 

the  defendant  that  the  animals  were  distrained  doing 
damage  to  his  close.  The  plaintiff  to  this  pleaded  that 
the  cattle  were  in  the  highway  and  from  there  escaped 
into  the  close,  which  was  not  fenced  as  by  immem- 
orial custom  the  defendant  was  required  to  fence  it. 
To  this  plea  the  defendant  demurred  specialty,  for 
that  the  plaintiff  did  not  state  that  the  animals  were 
rightfnlly  in  the  highway.  The  demurrer  was  held 
good  for  the  reason  that  the  plea  did  not  state 
with  certainty,  to  a  common  intent,  that  the  cattle 
were  rightfully  in  the  highway.  The  certainty  to  a 
common  intent  must  appear  from  the  language  of  the 
pleader  and  other  words  cannot  be  added  thereto  to 
make  his  language  certain  and  unambiguous. 

Dovastin  v.   Payne,  2  H.  Black  530.     Fuller  v.   Hampton,  5 
Conn.  416. 

Certainty  to  a  certain  intent  in  general  is  required 
in  indictments  charging  a  crime  and  may  be  illus- 
trated as  follows:  Suppose  a  party  is  charged  with 
publishing  a  libel  and  the  meaning  which  he  intended 
to  convey  is  certain,  plain  and  unambiguous  to  the 
ordinary  reader,  but  it  is  thus  plain,  certain  and  un- 
ambiguous because  the  reader  reads  between  the  lines, 
as  it  was  intended  he  should  do  by  the  writer,  and 
there  finds  the  real  meaning.  The  language  is  sar- 
castic. In  such  a  case  the  pleader  cannot  set  forth  the 
anguage  simply,  he  must  by  innuendo,  that  is  by  com- 
ment, charge  explicitly  the  meaning  the  writer 
intended  to   convey. 

Rex  v.  Home,  Cowp.  (572,  682.     Rex  v.  Linn,  Regis.  Doug.  158. 


EQUITY    PLEADING    AND    PRACTICE.  07 

Certainty  to  a  certain  intent  in  every  particular  is 
when  the  pleader  after  pleading  with  certainty  to  a 
common  intent  goes  on  to  negative  any  and  every 
other  possible  construction  of  which  the  language  used 
is  susceptible. 

Certainty  to  a  common  intent  is  usually  all  that  is 
required  of  the  pleader  in  equity.  But  this  certainty 
is  made  up  of  two  distinct  elements.  1.  Certainty  as 
to  the  matter  and  2.  Certainty  as  to  the  manner  of 
charging  it. 

As  to  the  matter.  All  the  facts  necessary  to  con- 
stitute a  case  for  the  complainant  must  be  stated  with 
the  requisite  certainty.  For  instance,  if  the  pleader 
desires  to  charge  that  the  defendant  has  been  guilty 
of  a  fraud,  since  fraud  is  not  a  fact  but  a  conclusion 
of  law,  the  pleader  must  set  forth  with  certainty  to  a 
common  intent  all  the  requisite  elements  constituting 
the  particular  fraud  of  which  he  complains. 

Or,  again,  if  the  pleader  desires  to  compel  the 
defendant  to  carry  out  and  fulfill  a  verbal  contract 
with  regard  to  land,  since  a  verbal  agreement  with 
reference  to  land  is  within  the  statute  of  frauds  and 
not  enforceable  in  a  court  of  equity  any  more  than  at 
law,  unless  it  has  been  partially  performed,  or  some 
other  equitable  reason  exists,  the  pleader  must  with 
certainty  to  a  common  intent  show  that  this  particular 
verbal  contract  has  been  taken  out  of  the  statute  of 
frauds  by  part  performance  or  in  some  other  manner. 

So  much  for  the  matter.  As  to  the  manner  each 
of  the  allegations  of  fact,  or  circumstance,  which  it  is 


68  EQUITY    PLEADING    AND    PRACTICE. 

necessary  for  the  pleader  to  allege  in  order  to  consti- 
tute a  fraud  or  to  show  that  the  complainant  is  enti- 
tled to  a  specific  performance  of  the  verbal  contract, 
must  be  stated  with  the  requisite  degree  of  certainty. 

FORM    OF    THE    BILL. 

The  address  must  contain  a  proper  description  of 
the  court  in  which  it  is  filed,  and  since  that  differs  in 
the  different  states  the  bill  must  be  varied  accordingly. 
(U.  S.  Ch.  R.  20,  and  Mich.  Oh.  R.  4.)  A  bill  which 
is  not  properly  addressed  is  defective. 

Bow  v.  Butters,  2  Chicago  Legal  News  33. 

INTRODUCTION. 

Owing  to  the  fact  that  the  jurisdiction  of  the 
United  States  is  limited,  it  is  necessary  that  the  fact 
of  jurisdiction  should  appear  upon  the  face  of  the 
record.  Therefore,  the  particular  facts  which  give 
the  federal  court  jurisdiction  should  be  clearly  set 
forth  in  the  bill,  whether  they  have  reference  to  the 
diverse  citizenship  of  the  parties,  or  the  subject-matter 
in  controversy,  otherwise  the  bill  will  be  demurrable, 
or  may  be  dismissed  by  the  court  of  its  own  motion. 

Hornthal  v.  Collector,  9  Wall.  560;  Hancock  v.  Holbrook.  112 
U.  S.  229;  Everhart  v.  Huntsville  College,  120  U.  S.  223. 

A  corporation  is  deemed  to  be  a  citizen  of  the  state 
under  whose  laws  it  is  organized.  When  a  corpora- 
tion is  a  party  it  should  be  described  by  its  proper 
name,  followed  by  an  averment  that  it  is  a  corporation 


EQUITY    PLEADING    AND    PRACTICE.  69 

created  and  organized  under  the  laws  of  the  state  of 

,  and  has  a  place  of  business  at . 

Winneposaugee  v.  Young,  40  N.  H.  420;  Central  Mnfg.  Co.  v. 
Hartshorne,  3  Conn.  199;  Penn.  Co.  v.  Railroad,  118  U.  S.  290; 
Goodlett  v.  Railroad,  122  U.  S.  391. 

The  court  will  take  judicial  notice  of  a  public  cor- 
poration. 
Withers  v.  Warner,  1  Str.  309. 

A  voluntary  association  has  no  right  to  sue  in  the 
name  of  the  association.  The  action  must  be  brought 
in  the  names  of  the  persons  composing  the  corporation. 

Story  Eq.  PI.  §  386;  1  Daniel  Chy.  Pr.  29,  30. 

When  a  bill  is  filed  by  a  person  in  a  representative 
capacity,  the  averment  must  be  sufficiently  full  and 
explicit  to  show  that  he  has  a  right  to  maintain  the 
suit.  Thus,  when  a  bill  was  filed  by  persons  who 
described  themselves  as  executors  of  the  last  will  and 
testament  of  A.  B.,  but  did  not  aver  the  death  of  A. 
B.,  nor  the  probate  of  the  will,  the  bill  was  held 
fatally  defective.  But  when  the  complainants  de- 
scribed themselves  as  administrators,  who  had  been 
duly  appointed  and  were  acting  as  such,  the  averments 
were  held  sufficient. 

Middlesworth  v.  Nixon,  2  Mich.  425;  Manning  v.  Drake,  1 
Mich.  34. 

When  a  bill  is  filed  by  one  of  a  class,  it  must  be  so 
stated. 

Bedford  v.  Leigh,  2  Dickens  707;  Coshy  v.  Wickliffe,  7  B 
Mon.  120. 


TO  EQUITY    PLEADING    ANT)    PRACTICE. 


LECTURE  III. 


STATING    PART    OF    THE    BILL. 

The  very  marrow  and  pith  of  a  bill  in  equity  is 
found  in  the  statimg^art.  It  is  here  that  the  ability, 
learning  anA  jwy  of  the  pleader  is  made  to  appear. 
OutsidU^of  Tjhe  stating  part,  the  bill  can  be  built  up 
and  patlddd%out  [with  the  dry  formula  supplied  by  pre- 
djed£ntk]>nt  in  tile  stating  part,  precedents  and  formula 
can  render  little  service,  since  in  each  instance  it  must 
be  Wried  to  embody  the  particular  facts  and  circum- 
stances of  the  particular  case  in  hand.  General  rules 
only,  for  the  guidance  of  the  practitioner,  can  be  given  ; 
his  success  will  depend  upon  that  skill  which  comes 
from  a  union  of  learning  and  practice. 

In  drafting  the  stating  part,  the  pleader  must  bear 
in  mind : 

4.  That  he  must  state  facts,  and  that  such  facts  must 
be  stated  directly  and  positively,  and  not  inferentially. 
*2.  He  must  show  that  the  court  has  jurisdiction. 
^3.  That  the  complainant   is  entitled   to  the  relief 
prayed  for. 

}■  4.  That  all  the  persons  interested  in   the  subject- 
matter  of  the  controversy  are  made  parties  to  the  suit. 

The  order  in  which  such  facts  shall  be  set  forth  is 
left  wholly  to  the  judgment  and  taste  of  the  pleader. 
The  arrangement  should  be  such  that  the  narration 


EQUITY    PLEADING    AND    PRACTICE.  71 

will  arrest  the  attention  and  interest  the  eonrt,  and 
each  statement  should  be  set  forth  with  that  precision, 
force  and  felicity  of  expression  as  will  insure  recollec- 
tion, and  the  spirit  pervading  the  whole  must,  while 
it  is  vigorous  and  aggressive,  be  so  tempered  with  fair- 
ness and  justice,  that  the  judgment  of  the  court  will 
be  unconsciously  convinced  of  the  manifest  equity  of 
the  plaintiff's  cause. 

The  bill  should  contain  allegations  of  fact,  and  not 
mere  recitals  of  circumstantial  evidence  from  which 
a  fact  may  be  inferred.  The  allegations  must  be 
plainly  and  distinctly  made,  so  that  the  defendant 
may  be  explicitly  informed  of  the  claim  made  against 
him,  and  the  theory  upon  which  the  complainant 
intends  to  rely. 

Wilson  v.  Eggleston,  27  Mich.  257;  Search  v.  Search,  12  C.  E. 
Green  137. 

When  the   facts  are  within   the  knowledge  of  the 

complainant,   they   must   be    charged    positively,    but 

when  such  facts  are  not  within  his  knowledge,  they 

may    be   stated    upon   the   information    and  belief  of 

complainant,    followed     by    the    averment,    that    he 

charges  them  to  be  true. 

Wells  v.  Bridgeport,  30  Conn.  316j  Campbell  v.  Railroad  Co. 
71  111.  611. 

Charging  a  fact  upon  information  and  belief  alone 
is  insufficient,  because  a  traverse  of  such  an  allegation 
puts  in  issue,  not  the  existence  of  the  fact,  but  the  in- 
formation and  belief. 

Ex  parte  Re  id,  50  Ala.  439. 


72  EQUITY    PLEADING    AND    PRACTICE. 

It  is  sometimes  difficult  to  determine  whether  a 
particular  fact  has  been  averred  directly  or  inferen- 
tially.  If  from  the  facts  which  are  directly  and 
positively  averred,  the  existence  of  some  other  fact  is 
necessarily  and  conclusively  presumed,  such  other  fact 
has  been  sufficiently  alleged,  but  anything  short  of 
such  conclusive  presumption  is  regarded  as  mere  infer- 
ence, and  will  not  be  considered. 

And  it  has  been  held  that  when  the  statute  required 

the  agreement  set   forth  in  the  bill  to  be  in  writing, 

and  there   was   no   direct   averment   that  it  had  been 

reduced   to    writing,  but    a  positive  allegation    of  an 

agreement,  that    the    court    would  presume  it  was  a 

legal    agreement.      But     on     the    other    hand,     if     it 

appeared  elsewhere  in  the  bill,  that  the  agreement  was 

in  parol,  the  objection  could  be  taken  advantage  of  by 

demurrer. 

Dudley  v.  Bachelor,  53  Me.  403;  Cozine  v.  Graham,  2  Paige 
177;  Macy  v.  Guilders,  2  Tenn.  Ch.  43S,  442;  Redding  v.  Wilkes, 
3  Bro.  C.  C.  400. 

The  facts  constituting  the  plaintiff's  case  must  be  so 
fully  stated,  that  if  they  are  admitted  by  the  answer  or 
established  upon  the  hearing,  that  the  court  can  render 
a  decree  upon  them  ;  the  complainant  must  make  a 
case  by  his  bill  and  the  case  made  must  be  established 
by  admissions  or  proof.  The  allegations  and  the 
proofs  must  reciprocally  meet  and  conform  to  each 
other.  Facts  established  by  the  admissions  of  the 
defendant,  or  the  testimony  of  witnesses,  will  not.  be 
considered  by  the  court,  unless  they  established  some 


EQUITY    PLEADING    AND    PRACTICE.  73 

distinct  allegation  made  in  the  bill  no  matter  of  what 
weight  and  importance  they  may  be  intrinsically. 

Harrison  v.  Wixon,  9  Peters  483,  503;  Jackson  v.  Ashton,  11 
Peters  229;  Mead  v.  Askew,  56*Ala.  584;  Moran  v.  Palmer,  13 
Mich.  307;  CoDneston  v.  Miller,  41  Mich.  608;  Fox  v.  Pierce,  50 
Mich.  500. 

Facts  and  not  conclusions  of  law  must  be  alleged. 
Therefore,  if  the  bill  seeks  to  have  a  tax  deed  set  aside 
on  the  ground  that  the  tax  for  which  the  land  was 
Bold  was  an  illegal  tax,  the  facts  upon  which  the 
pleader  relies  to  show  that  the  tax  was  in  fact  void 
must  be  averred,  and  a  positive  allegation  that  the  tax 
is  void  is  not  sufficient. 

(nimble  v.  East  Saginaw,  43  Mich.  367;  Foster  v.  Hill,  55 
Mich.  540;  Le  Baron  v.  Shepherd,  21  Mich.  263. 

As  a  rule  a  general  allegation  of  fraud  is  insufficient 
to  support  proof  of  facts  establishing  the  fraud.  Such 
facts  should  have  been  alleged.  On  the  other  hand  if 
the  allegations  of  fact  clearly  show  that  a  fraud  has  been 
committed  there  need  be  no  positive  allegation  of  fraud. 

Long  v.  Marvin,  15  Mich.  00;  Hubbard  v.  McNaughton,  43 
Mich.  221:  Hale  v.  Chandler,  2  Mich.  531;  Merrill  v.  Allen,  38 
Mich.  487. 

When  the  right  of  the  complainant  depends  upon 
the  performance  of  a  condition  which  has  not  been 
performed,  he  must  set  forth  the  facts  which  excuse 
its  performance,  an  allegation  that  there  is  a  good 
excuse  is  not  sufficient  to  support  testimony  as  to  the 
facts  which  excused  performance. 

Le  Baron  v.  Shepherd,  21  Mich.  263. 


74  EQUITY    PLEADING    AND    PRAl   r I <  E. 

If  the  bill  shows  that  the  injuries  complained  of  are 

of  such  long  standing  that  unexplained  they  impute 

laches  to  the   complainant,  the  facts  relied  upon  as 

excusing  the  delay  must  be  set  forth  in  the  bill,  or 

otherwise  it  may  be  attacked  by  demurrer  or  plea,  or 

the  court  of  its   own  motion   may  refuse   to  consider 

the  case. 

Sullivan  v.  Railroad,  94  IT.  S.  806:  Hayward  v.  Bank,  96  U.  S. 
611;  Spridel  v.  Henrici,  120  U.  S.  377;  Richards  v.  Mackal.  124 
U.  S.  183. 

As  an  illustration  of  the  necessity  which  rests  upon 

the  complainant  of  alleging  all  the  facts  in  his  bill 

necessary  to  constitute  his  case,  a  bill  filed  to  enforce 

rights  conferred  by  the  statute  is  a  good  example.     In 

such  a  case  the  bill  must  show  a  substantial  compliance 

with  every  provision  of  the  statute  upon   which  the 

right  depends. 

Remeau  v.  Mills,  24  Mich.  15;  Bangs  v.  Stephenson,  63  Much. 
661;  Paine  v.  Newell,  66  Mich.  (June  9,  1887.) 

And  when  a  complainant  claims  rights   under  any 

judicial    proceeding  the  averments  of    the  bill  must 

show  all  the  facts  necessary  to  establish  the  validity  of 

such  proceedings. 

Hobart  v.  Frisbie,  5  Conn.  592;  Kunkel  v.  Marked,  26  Md. 
390-408;  Frost  v.  Flanders,  37  N.  H.  549;  Mayor  v.  Signoret,  50 
CaL  298. 

When  a  bill  is  filed   to  enforce  rights  given  by  a 

statute,  and  there  is  an  exception  in  the  enacting  clause 

of  such  statute,  it  must  negative  such  exception  ;  but 

where  there  is  no  exception  iu  the  enacting  clause  but 

an  exemption  in  a  proviso  thereto,  or  in  a  subsequent 


EQDITX     PLEADING    AND    PRACTICE.  .  ■  > 

section    of   the   act,  the    bill    need  not  aver  that  the 

defendant  does  not  come  within  the  exemption.     The 

exemption  of  the  defendant,  if  it  exists,  is  a  matter  of 

defence  and  must  be  shown  by  the  defendant. 

Attorney  General  v.  Oakland  Co.  Bk.,  Wal.  Cb.  90;  Tcel  v. 
Fonda,  4  Johns.  304.  . 

The  bill  must  contain  "arguments  of  every  fact 
necessary  to  give  the  court  jurisdiction.  For  instance, 
except  in  certain  cases,  the  court  of  equity  is  not 
given  jurisdiction  unless  the  amount  involved  is  at 
least  a  specified  sum.  In  this  state  the  minimum  sum 
is  one  hundred  dollars.  When  the  bill  on  its  face 
shows  that  the  amount  in  controversy  is  not  sufficient 
to  give  the  court  jurisdiction,  the  defect  is  fatal,  and 
if  called  to  the  attention  of  the  court,  or  discovered  by 
the  court,  the  bill  will  be  dismissed. 

Gamber  v.  Holbeu,  5  Micb.   331. 

But  although  the  bill  may  not  contain  the  specific 
allegation  that  the  amount  in  controversy  is  sufficient 
to  give  the  court  jurisdiction,  still  if  there  are  aver- 
ments which  clearly  and  unequivocally  show  that  it 
must  necessarily  be  of  sufficient  value,  such  averments 
will  be  sufficient  to  give  the  court  jurisdiction. 

Abott  v.  Gregory,  39  Micb.  68;  Glidden  v.  Morrell,  44  Mich. 
202. 

In  setting  forth  the  facts  in  the  bill,  the  pleader 
should  avoid,  as  far  as  possible,  all  unnecessary  recitals 
of  deeds,  documeuts,  contracts,  or  other  instruments 
verbatim.  After  referring  to  a  document,  the  pleader 
may  add  the  following  formula :  "  As  by  said  inden- 


76  EQUITY    PLEADING    AND    PRACTICE. 

ture  (or  agreement),  when  proved,  will  appear."    This 

makes  the  whole  document  referred  to  a  part  of  the 

record. 

Harmer  v.  Gooding,  3  DeG.  &  S.  407-410;  Swetland  v.  Swet- 
land.SMich.  482. 

But  the  pleader  must  be  careful  that  the  body  of 
his  bill  contains  averments  of  all  the  facts  which  he 
claims  are  established  by  any  such  document,  for 
while,  by  the  above  formula,  he  makes  the  document 
a  part  of  the  record,  it  is  only  a  part  of  the  record  for 
the  purpose  of  amplifying  and  more  particularly  and 
fully  setting  forth  the  particular  allegations  contained 
in  the  bill,  and  only  those  parts  of  the  document  will 
be  considered  that  refer  to  averments  in  the  bill. 

Mayor  v.  Siguoret,  50  Cal.  298;  Moses  v.  Brodie,  1  Tena.  Ch. 
:*97. 

It  is  a  maxim  of  equity  that  he  who  seeks  equity 
must  do  equity.  Therefore  if,  under  the  facts  stated, 
any  duty  devolves  upon  the  plaintiff  which  in  good 
conscience  he  ought  to  perform,  although  its  perform- 
ance could  not  be  compelled  at  law,  he  must  aver  a 
readiness  and  willingness  on  his  part  to  perform  it, 
otherwise  he, will  not  be  heard  to  complain. 

Perry  v.  Carr,  41  K  H.  371. 

THE   CONFEDERATING    PART. 

It  is  not  necessary  that  the  bill  should  aver  that  the 
defendant  is  confederating  with  unknown  parties  with 
intent  to  injure  and  defraud  the  complainant,  unless 
such  is  the  fact,  and  that  fact  is  of  importance  to  the 


EQUITY    PLEADING    AND    PRACTICE.  I  i 

complainant.  In  case,  however,  that  fact  exists,  and 
is  important,  it  should  be  set  out  as  fully  and  precisely 
as  possible. 

THE    CHARGING    PART. 

The  original  purpose  of  the  charging  part  was  to 
meet  and  answer  some  special  defence  of  the  defend- 
ant. This  was  done  by  averring,  by  way  of  pretense, 
such  special  defence,  and  then  adding  matter  of  reply 
in  the  form  of  a  charge. 

Stafford  v.  Brown,  4  Paige  88;  Van  Riper  v.  Claxton,  1  Stock- 
ton 302;  Conneston  v.  Miller,  41  Mich.  608. 

THE    JURISDICTIONAL    CLAUSE. 

This  clause  is  usually  retained  in  this  state,  although 
its  omission  does  not  render  the  bill  defective.  The 
averment  that  the  court  has  jurisdiction  is  a  mere 
conclusion  of  law  at  best,  and  does  not  strengthen  the 
averments  of  fact,  which  show  that  the  cause  is  cogni- 
zable in  a  court  of  equity,  nor  on  the  other  hand  will 
it  make  good  the  want  of  some  necessary  averment. 
Bateman  v.  Wilboe,  1  Sch.&Lef.  201,  204;  Story  Eq.  PI.  §  34. 
In  the  United  States  court  it  is  not  necessary  to 
insert  in  the  bill  the  confederating  or  charging  part 
or  the  jurisdictional  clause. 

U.  S.  Rule  21;  Perry  v.  Corning,  7  Blatch.  195;  Dunham  v. 
Railroad,  1  Bond  492;  Walden  v.  Bodley,  14  Pet.  156;  Railroad 
v.  Bradleys,  10  Wall.  299;  Wilson  v.  Graham,  4  Wash.  53. 


78  equity  pleading  and  practice. 


LECTURE   IV. 


INTERROGATING    part. 

Formerly  this  was  an  essential  and  important^part 
of  the  bill.  When  parties  in  interest  were  not  per- 
mitted to  testify,  the  complainant  could  in  this  way 
alone  obtain  from  the  defendant  important  admissions, 
but  now,  since  the  statute  permits  all  parties  to  be 
examined  as  witnesses,  the  interrogating  part  of  the 
bill  in  most  cases  is  of  no  importance  whatever.  The 
rules  permit  the  complainant  to  waive  his  right  to 
have  the  answer  made  under  oath,  and  unless  for  some 
reason  he  still  desires  a  discovery,  he  adopts  that  course, 
since  an  answer  not  under  oath  has  the  force  and  effect 
merely  of  a  pleading. 

Hopkins  v.  Granger,  52  111.  504. 

When  an  answer  under  oath  is  not  waived,  and 
the  answer  is  put  in  under  oath,  so  much  of  it  as 
is  responsive  to  the  interrogating  part  of  the  bill  is 
evidence  for  the  defendant,  and  its  force  cannot  be 
overcome  except  by  the  testimony  of  two  witnesses. 
Putting  an  answer  in  on  oath,  when  an  answer  under 
oath  has  been  waived,  does  not  make  it  evidence  for 
the  defendant. 

Wallwork  v.  Derby,  40  111.  527. 

When  an  answer  on  oath  is  waived  no  relief  can  be 
prayed  which  rests  solely  upon  the  necessit}'  of  dis- 


EQUITY    PLEADING    AND    PRACTICE.  79 

covery,  for  the  reason  that  by  waiving  the  right  to  an 
answer  upon  oath,  the  complainant  has  thereby  waived 
all  right  to  discovery. 

Torrent  v.  Rogers,  :59  Mich.  85. 

Where  discovery  therefore  is  desired,  an  answer 
upon  oath  must  not  be  waived  and  interrogatories 
should  be  added,  so  drawn  that  the  defendant's  atten- 
tion will  be  particularly  called  to  all  those  facts  and 
circumstances  as  to  which  a  full  discover}'  is  desired. 
The  rules  of  the  Supreme  Court  of  the  United  States 
require  that  these  interrogatories  shall  be  numbered 
and  that  the  complainant  shall  designate  the  particu- 
lar interrogatories  which  each  of  the  defendants  is  to 
answer,  bv  a  note  at  the  end  of  the  bill. 

"  ml 

Rules  40  to  44  inclusive. 

PRAYER    FOR    RELIEF. 

Having  fully  stated  to  the  court  his  cause  of  action 
and  explained  wherein  the  complainant  has  already 
been  deprived  of  his  just  rights,  or  in  what  manner  he 
is  threatened -with  a  deprivation  of  those  rights,  the 
pleader  asks,  in  the  prayer  for  relief,  the  aid  and 
assistance  of  the  court.  The  prayer  usually  is  for 
specific  and  general  relief.  The  prayer  for  specific 
relief  may  be  in  the  alternative,  that  is  the  pleader 
may  ask  for  some  particular  thing  and  then  add  a 
specific  prayer  for  some  other  thing  in  lieu  of  the  first, 
in  case  that  should  be  denied.  The  pleader  is  fre- 
quently compelled  to  resort  to  this  course.  He  may 
be  in  doubt  in  regard  to  the  facts  in  controversy,  or  if 


80  EQUITY    PLEADING    AND    PRACTICE. 

he  is  perfectly  familiar  with  the  facts  he  may  be  in 
doubt  as  to  the  conclusion  the  court  will  draw  from 
them.  In  all  such  cases  of  doubt  it  is  proper  to  have 
a  prayer  for  specific  relief  drawn  in  the  alternative. 
But  a  bill  so  drawn  that  specific  relief  in  the  alterna- 
tive may  be  prayed  for,  must  be  consistent  with  itself. 
The  bill  must  not  contain  distinct  causes  of  complain- 
ant which  are  inconsistent  with  and  defeat  each  other. 
The  pleader  must  not  blow  hot  and  cold. 

Lloyd  v.  Brewster,  4  Paige,  537:  Cotton  v.  Ross,  2  Paige,  396; 
Hart  v.  McKeen,  Wal.  Ch.  417;  Farwell  v.  Johnson,  34  Mich. 
342. 

If  there  is  a  prayer  for  special  relief  merely  and 

upon  the  pleadings  and  proofs,  the  complainant  is  not 

entitled  to  that  particular  relief,  he  will  not  be  given 

any  relief  at  all  and   his  bill  will   be   dismissed,  unless 

he  is  permitted  to  amend. 

Polk  v.  Clintou,  12  Ves.  48;  Story  Eq.  PI.  §§  40,  41 ;  English  v. 
Poxall,  2  Peters,  595. 

If,  in  addition  to  the  prayer  for  special  relief,  there 
is  added  a  prayer  for  general  relief,  in  case  the  particu- 
lar relief  asked  for  is  denied,  the  complainant  will  be 
allowed  such  other  relief  as  is  agreeable  to  the  case 
made  by  the  bill.  It  has  been  said  that  a  prayer  for 
general  relief  was  sufficient,  and  that  a  prayer  for 
special  relief  might  be  omitted  in  the  bill  and  asked 
for  at  the  hearing. 

Hiern  v.  Mill,  13  Ves.  114;  Coltonv.  Ross,  2  Paige,  396;  Texas 
v.  Heidenberg,  10  Wal.  68;  Pleasants  v.  Glasscock,  1  Sm.  & 
Mar.  17,  24,  25;  Story  Eq.  PI.  §  41;  Wilson  v.  Graham,  4  Wash. 
C.  C.  53. 


EQUITY    PLEADING    AND    PRACTICE.  81 

When  a  bill  is  filed  for  discovery  merely  and  the 
complainant  is  not  entitled  to  any  relief  in  addition  to 
the  discovery,  he  must  confine  his  prayer  for  relief  to 
the  particular  relief  to  which  he  is  entitled. 

Wells  v.  Railroad,  Wal.  Ch.  35;  Loker  v.  Roll,  3  Ves.  4-7. 

If.  an  injunction  or  a  writ  of  ne  exeat  regno  is 
required  it  must  be  specially  prayed  for. 

Spoonerv.  McConnell,  1  McLean  337;  Story  Eq.  PI.  §41;  U. 
S.  Ch.  R.  21. 

PRAYER    FOR    PROCESS. 

The  prayer  for  process  is  an  essential  part  of  the 
bill,  and  if  it  is  omitted  the  bill  may  be  demurred  to. 

Wright  v.  Wright.  4  Halst.  Ch.  143. 

In  the  prayer  for  process  must  be  inserted  the 
names  of  all  the  persons  whom  the  complainant  desires 
to  make  defendants  and  only  those  whose  names  art- 
inserted  are  made  defendants. 

Verplank  v.  Ins.  Co.,  2  Paige  438;  Lyle  v.  Bradford.  7  I>.  Mon- 
roe  113. 

If  a  suit  is   against  a  person  both  in  his  individual 
and   representative  capacity,   process    must  be    asked 
against  him  in  both  capacities. 
Carter  v.  Iugrahaui,  43  Ala.  78. 

Ordinarily  the  bill  need  not  be  sworn  to  but  there 
are  certain  exceptions.  Bills  must  be  verified  when 
they  are  filed. 

1.  To  obtain  the  benefit  of  an  instrument  upon 
which  an  action  at  law  will  lie. 

March  v.  Davidson,  9  Paige  580;  Bennett  v  Waller,  23  111.  97. 
6 


82  EQUITY    PLEADING    AND    PRACTICE. 

2.  To  perpetuate  the  testimony  of  witnesses. 
Laight  v.  Morgan,  1  Johns.  Cas.  429;  Story  Eq.  PI.  §§304,  300. 

3.  To  obtain  a  divorce. 
Mich.  Ch.  Rule  95. 

4.  Bills  of  interpleader. 

Edrington  v.  Allsbrook,  21  Tex.  186;  Monks  v.  Holroyd,  1 
Cow.  691. 

5.  Bills  praying  for  a  preliminary  injunction. 

Holdredge  v.  Gwynne,  3  C.  E.  Green  26 ;  Moore  v.  Cheese- 
man,  23  Mich.  327. 

6.  Bills  pra}*ing  for  a  writ  of  ne  exeat. 
Rice  v.  Hale,  5  Cush.  238. 

The  bill  having  been  drafted,  signed  by  counsel, 
verified  when  necessary  and  properly  endorsed,  is 
filed,  with  the  clerk  in  the  United  States  court,  with 
the  register  in  the  circuit  court  in  this  state.  The 
county  clerk  in  this  state  is  clerk  of  the  circuit  court, 
and  register  of  the  circuit  court  in  chancery.  But 
since  in  popular  language  he  is  spoken  of  as  clerk 
simply  and  the  same  officer  in  the  United  States  court 
is  styled  clerk,  to  prevent  confusion  we  shall  refer  to 
him  as  clerk. 

In  this  state  upon  filing  the  bill  a  subpoena  issues 
a6  a  matter  of  course  under  the  seal  of  the  court  dated 
and  tested  of  the  day  of  issue  and  made  returnable  on 
a  day  certain  (except  Sunday)  in  term  time  or  vaca- 
tion, not  less  than  ten  days  from  the  issuing  thereof. 

Anderson  v.  Brice,  3  Mich.  280;  Peck  v.  Cavell,  16  Mich.  8; 
Fenton  v.  Kyle,  27  Mich.  454;  Hemmens  v.  Bently,  32  Mich. 
89;  Torrens  v.  Hicks,  32  Mich.  307;  Mich.  Ch.  R.  9. 


KQUITY    PLEADING     AND    PRACTICE.  88 

When  there  are  several  defendants  more  than  one 
subpoena  may  issue  for  convenience  in  service.  The 
names  of  all  the  defendants  must  be  inserted  in  the 
subpoena. 

Mich.  Ch.  R.  10;  Richardson  v.  Thompson,  41  111.  202. 
Formerly  the  subpoena  required  the  defendant  to 
appear  under  a  certain  penalty,  mentioned  therein, 
but  to  remove  the  danger  of  mistake  among  defend- 
ants ignorant  of  the  meaning  of  this  command,  the 
rules  now  provide  that  the  penalty  shall  be  omitted 
and  the  defendant  shall  be  notified  simply  that  a  bill 
has  been  filed  and  that  unless  he  appears  within  a 
given  time  his  default  may  be  entered.  This  same 
rule  also  requires  that  there  shall  be  underwritten  a 
notice  designating  against  what  defendants  a  personal 
decree  is  desired. 

Mich.  Rule  122;  U.  S.  Rule  12. 

In  the  United  States  court  when  the  bill  is  filed  a 
praecipe  must  also  be  filed  with  the  clerk,  directing 
the  issuance  of  a  subpoena  and  naming  the  rule  day  to 
which  it  is  made  returnable,  which  must  be  the  first 
or  second  rule  day  occurring  twenty  days  after  its 
issuance. 

U.  8.  Rules  7,  11,  12. 

A  subpoena  issued  out  of  the  United  States  court  is 
served  by  the  marshal,  his  deputy,  or  by  some  other 
person  specially  appointed  by  the  court. 

U.  S.  Rule  15,  Re.  St.  §922. 

It    is  served    by    the  officer    making    the    service 


84:  EQUITY    PLEADING    AND    PRACTICE. 

delivering  a  copy  thereof  to  the  defendant  personally 
or  leaving  a  copy  at  his  usual  place  of  abode,  with 
some  adult  person  who  is  a  member  or  resident  in  the 
family. 

U.  S.  Rule  13. 

A  subpoena  issued  by  the  state  circuit  court  in 
chancery  may  be  served  anywhere  within  the  state  on 
or  before  the  return  day  thereof.  It  may  be  served 
by  the  sheriff  of  any  county  or  by  any  other  person. 
It  is  served  by  delivering  a  copy  of  the  writ  sub- 
scribed by  the  complainant,  his  solicitor  or  the  officer 
or  person  serving  the  same,  inscribed  copy  and  show, 
ing  the  original,  under  the  seal  of  the  court,  at  the 
time  of  such  delivery,  to  the  defendant. 

Mich.  Ch.  Rule  10;  Creveling  v.  Moore,  39  Mich.  563;  Soule  v. 
Hough,  45  Mich.  418-422. 

If  service  is  made  by  an  officer  he  makes  an  official 
return  of  the  fact.  If  service  is  made  by  a  person 
delegated  by  the  United  States  court  or  by  a  private 
person  in  this  state  the  return  of  service  must  be 
under  oath. 

U.  S.  Rule  15. 

If  a  subpoena  is  returned  not  served  upon  a  defend- 
ant, the  complainant  is  entitled  to  another  subpoana 
against  such  defendant,  until  due  service  is  made. 

U.  8  Rule  14,  Mich.  Rule  9. 

The  statutes  of  this  State  provide  that  when  per- 
sonal service  cannot  be  had  on  account  of  the  defend- 
ant being  a  non-resident,  absent  from  his  home,  or 


EQUITY    PLEADING    AND    PRACTICE.  85 

concealed,  that  substituted  service  may  be  obtained  by 
publication. 

How.  St.  §§  6670-6686. 

The  U.  S.  Statutes  provide  for  substituted  service 
by  publication  in  suits  to  enforce  a  lien  upon,  or 
claim  to,  or  to  remove  any  incumbrance,  lien  or  cloud, 
upon  the  title  to  any  real  or  personal  property  within 
the  district  wherein  the  suit  is  brought,  if  one  or  more 
of  the  defendants  shall  not  be  an  inhabitant  of,  or 
found  within  the  district. 

18  Statutes  at  Large,  472.  ' 

Under  the  U.  S.  Statute  the  defendant  may  appear 
within  one  year,  have  the  decree  opened  and  be  per- 
mitted to  defend.  Under  the  Michigan  Statute  he 
has  for  that  purpose  seven  years,  unless  notice  of  the 
decree  has  been  served  upon  him,  in  which  event  the 
time  within  which  the  decree  may  be  opened  is  limited 
to  one  year. 

Since  the  time  when  parties  to  a  suit  were  permitted 
to  be  examined  as  witnesses,  it  is  seldom  necessary  to 
have  answer  from  the  defendant,  and  therefore  if  he 
fails  to  appear  in  the  cause  and  answer,  plead  or  de- 
mur, his  default  is  entered  and  the  cause  proceeds 
ex  parte.  There  may  still  be  cases,  however,  when 
discovery  is  required,  and  in  such  a  case  the  defendant 
may  be  compelled  to  appear  by  attachment. 

U.  S.  Rule  18,  Mich.  Rule  18,  13;  Riopelle  v.  Doellner,  26 
Mich.  102;  Thompson  v.  Wooster,  114  U.  S.  104. 

If  the  defendant's  default  is  entered  for    his  not 


86  EQUITY    PLEADING    AND    PRACTICE. 

appearing   and    answering,    pleading    or   demurring 
within  the  prescribed  time,  the  effect  is  the  same  as 
though  he  had  appeared  and  answered  admitting  all 
the  material  allegations  of  the  bill. 
Ward  v.  Jewett,  Walk.  Ch.  19,  45. 

A  decree  may  then  be  taken  by  the  complainant, 
termed  a  decree  pro  confesso.  Such  decree  must  be 
limited  strictly  to  the  case  made  by  the  bill.  Those 
allegations,  and  those  only,  has  the  defendant  by  his 
default  admitted  to  be  true.  If,  therefore,  the  com- 
plainant should  find  it  necessary  to  amend  his  bill  and 
add  new  and  material  allegations,  the  effect  of  the 
amendment  will  be  to  violate  the  order  taking  the  bill 
as  confessed,  and  new  process  must  issue  and  be  served 
upon  defendant  and  the  same  proceedings  had  a* 
though  the  suit  had  been  commenced  de  novo. 

Harris  v.  Deitrich,  29  Mich.  366. 

If  the  order  to  take  the  bill  as  confessed  is  entered 

for  default  of  the  defendant's  appearing,  the  cause 

proceeds  ex  parte,  and  the  defendant  is  not  entitled  to 

notice  of  further  proceedings,  but  if  his  default  is  for 

not  answering,  pleading  or  demurring   having  after 

appeared,  the  cause  proceeds  ex  parte  as  before,  but 

the  defendant  is  entitled  to  notice  of  each  subsequent 

step  in  the  cause. 

Mich.  Rules  2,  15;  Warren  v.  Juif,  38  Mich.  662;  Watson  v. 
Hinchman,  41  Mich.  716. 

The  entry  of  an  order  taking  a  bill  for  divorce  pro 
eonfesso   on  account   of    defendant's  default   in    not 


EQUITY    PLEADING    AND    PRACTICE.  87 

appearing  or  answering,  pleading  or  demurring,  doe* 

not  have  the  effect  of  making  the  allegations  in  the 

bill  evidence  for  the  complainant.     The  public  are 

interested  in  preserving  the  marriage   contract.     As 

we  have  seen,  such  bills  must  be  verified.     They  must 

contain  distinct  allegations  that  the  bill  is  not  filed  in 

collusion  with  the  defendant,  directly  or  indirectly, 

and   the    allegations   contained  in  the  bill  as  to   the 

grounds  of  divorce  must  be  established  by  satisfactory 

proof.     And  the  officer  before  whom  the  proofs  are 

taken  is  required  to  make  such  full  inquiries  of  the 

witnesses  as  shall   be  necessary  to  arrive  at  all  the 

material  facts  in  the  case. 

Emmons  v.  Emmons,  Walk.  Ch.  532;  Pugsley  v.  Pugsley,  ^ 
Paige  589. 


88  EQUITY    PLEADING    AND    PRACTI0E. 

LECTURE  V. 


APPEARANCE  OF  DEFENDANT,  KTO. 

The  defendant  having  been  personally  served  with 

process  must  cause  his  appearance  to  be  entered  in 

the  common  order  book  within  the  time  prescribed  by 

the  rules  and  serve  a  notice  of  such  appearance  upon 

complainant,  if  he  would  prevent  his  default  being 

entered  and  an  order  made  taking  the  bill  as  confessed. 

1  Barb.  Cb.  Pr.  78;  Jennison  Cb.  Pr.  40;  Mich.  Rules  11,  14: 
U.  S.  Rules  17, 18. 

The  defendant  having  appeared,  if  the  occasion 
exists,  may  except,  to  the  bill  on  the  ground  that  it 
contains  impertinent  or  scandalous  matter,  and  in  the 
United  States  Court  if  it  is  made  unnecessarily  prolix 
by  recitals  of  matters  not  pertinent  or  relevant  to  the 
real  cause  of  action,  or  by  needless  repetitions. 

Upon  exceptions  of  this  nature  being  filed  they  may 
be  referred  to  a  master.  If  the  master  or  the  court 
find  that  the  exceptions  are  well  taken,  the  objectional 
matter  will  be  expunged  at  the  expense  of  complain- 
ant, and  he  may  be  adjudged  to  pay  all  the  defendant's 
costs  up  to  that  time. 

U.  S.  Rules  25,  26,  27;  Mich.  Rules  30,  31,  32,  33,  34. 

Impertinences  are  wholly  irrelevant  or  unnecessary 
allegations  and  statements,  and  they  have  been  de- 
scribed to  be  "when  the  records  of  the  court  are 
stuffed  with  long  recitals,  or  with  long  digressions  of 


EQUITY     PLEADING     AND    PRACTICE.  M-* 

mutters  of  fact,  which  are  altogether  unnecessary  and 

totally  immaterial  to  the  matter  in  question;  as  where 

a  deed  is  unnecessarily  set  forth  in  haec  verba.''''     The 

test  as  to  whether  a  particular  allegation  is  or  is  not 

impertinent  is  this,  is  it  material?     If  it  is  not  material 

it   is  impertinent,  but   its  immateriality  must  clearly 

appear.     If  the  court  is  in  doubt,  the  matter  will  not 

be  stricken  out  as  impertinent. 

Rickards  v.  Attorney-Gen] .  12  CI.  and  Fl.  30;  Railroad  v.  Stew- 
art, 4  C.  E.  Green  343;  Whaley  v.  Norton,  1  Vern.  483;  Clark  v. 
Periam,  2  Atk.  333,  337;  Woods  v.  Morrell,  1  Johns.  Ch.  103. 

Scandal  is  an   irrelevant  allegation  of  some  matter 

which  is  unbecoming  the  dignity  of  the  court  to  hear, 

or  is  contrary  to  good  manners,  or  which  charges  some 

person  with  the  commission  of  a  crime  not  necessary 

to  be  shown  in  the  cause ;  in  short,  any  unnecessary 

allegation  bearing  cruelly  upon  the  moral  character  of 

an  individual.     Nothing  is  scandalous,  however,  which 

is  relevant.     A  man  may  be  called  a  thief  when  that 

fact  is  pertinent  to  the  issue  involved. 

Fisher  v.  Owen,  8  Ch.  Div.  045;  Gleaves  v.  Morrow,  2  Tenn. 
Ch.  593;  Goodrich  v.  Roduey,  1  Min.  195:  Desplacea  v.  Goris,  1 
Edw.  Ch.  350. 

The  objection  to  the  bill  for  impertinence  must  be 

taken  before  answering  or  submitting  to  answer,  i.  e., 

obtaining  an  extension  of  time  within  which  to  answer. 

Anon,  2  Vesey  Sen.,  630;  Ferrar  v.  Ferrar,  1  Dick.  173;  Anon, 
5  Vesey  Jr.,  050;  Jones  v.  Spencer,  2  Tenn.  Ch.  770. 

But  an  objection  for  scandal  may  be  taken  after 
answer.  The  reason  for  the  distinction  is  that  imper- 
tinence   involves   merely  a  question   of   costs,   while 


90  EQUITY    PLEADING    AND    PRACTICE. 

scandal    is    regarded    as    an    indignity    to    the    court. 

Same  authorities. 

And  the  objection  to  the  bill  for  scandal  may  be 

made  by  one  not  a  party  to  the  suit. 

Coffin  v.  Cooper,  6  Ves.,  513;  Williams  v.  Douglas,  5  Beav. . 
82,  85. 

No  pleading  may  contain  impertinent  or  scandalous 
matter,  and  if  it  does  it  may  be  excepted  to  for  that 
reason. 

Mich.  Ch.  Rules.  18,  30. 

DISCLAIMER. 

If  the  defendant  has  no  interest  whatever  in  the 
subject-matter  of  the  suit,  and  never  had  any,  or 
claimed  to  have  had  any,  he  may  answer  by  disclaiming 
all  interest  in  the  proceedings.  A  simple  disclaimer, 
however,  is  seldom  sufficient,  except  in  those  cases 
where  the  defendant  has  been  made  a  party  by  mis- 
take. If,  as  a  matter  of  fact,  although  the  defendant 
may  not,  at  the  time  the  suit  was  commenced,  have 
any  interest  in  the  subject-matter  of  the  controversy, 
if  he  once  had  and  has  since  parted  with  such  interest, 
he  may  be  called  upon  to  disclose  to  whom  he  has 
assigned  the  interest,  that  the  complainant  may  make 
the  assignee  a  party  defendant. 

Spoffordv.  Manning,  2  Edw.  Ch.358;  Elbsworth  v.  Curtis,  10 
Paige  105. 

A  mere  disclaimer  is  not  sufficient  if  the  defendant 

is  charged  with  being  a  party  to  a  fraud,  or,  if  the 

allegations  of  the  bill  show  that  the  defendant  has  go 


KQUITY    PLEADING    AND    PRACTICE.  9  1 

entangled  himself  up  with  the  whole  transaction  that 

the  complainant  was  obliged  to  make  him  a  party,  for 

in  such  a  ease  the  complainant  is  entitled  to  an  answer 

explaining  the  defendant's  conduct. 

Grabam  v.  Cooper,  9  Sim.  93,  102;  Glassington  v.  Thwaits,  2 
Russ.  458. 

If  there  is  no  objection  to  the  bill  on  the  ground 
that  it  contains  impertinent  or  scandalous  matter,  and 
the  defendant  desires  to  interpose  a  defence,  the  next 
step  for  him  to  take  will  depend  entirely  upon  the 
nature  of  his  defence.  For  example,  A  may  have 
filed  a  bill  to  enforce  a  contract  made  with  B,  by  the 
terms  of  which  B  agreed  to  sell  a  certain  parcel  of 
land  for  a  given  sum  to  A.  B's  defence  may  be  that 
the  contract  is  void,  not  having  been  reduced  to 
writing,  and  the  fact  that  it  was  not  reduced  to  writ- 
ing may  or  may  not  appear  upon  the  face  of  the  bill,  or 
B's  defence  may  be  that  the  contract  is  void  on  account 
of  some  fraud  or  imposition  practiced  by  A  whereby 
he  was  induced  to  execute  the  contract — or  in  other 
words,  the  defence  may  consist  of : 

1.  Some  objection  to  the  case  made  by  the  bill 
which  appears  upon  the  face  of  the  bill,  showing  that 
the  complainant  has  no  cause  of  action  ;  or, 

2.  There  may  be  some  fact  not  appearing  upon  the 
face  of  the  bill,  and  not  going  to  the  merits  of  the 
cause,  which  will  prevent  the  court  from  taking  cogni- 
zance of  the  cause ;  or, 

3.  The  defence  may  go  to  the  merits  of  the  defend- 
ant's cause,  the  defendant  claiming  that  upon  all  the 


92  EQUITY    PLEADING    AND   PRACTICE. 

facts  and  circumstances  that  the  plaintiff  is  not  entitled 
to  any  relief. 

The  first  two  are  called  dilatory  defences,  because 
they  merely  postpone  or  at  best  prevent  an  investiga- 
tion into  the  merits  of  the  matters  in  controversy. 
The  last  is  called  a  defence  upon  the  merits,  because 
it  puts  in  issue  the  allegations  upon  which  the  com- 
plainant bases  his  right  to  relief,  and  the  trial  of  the 
cause  upon  such  an  issue  will  result  in  a  final  disposi- 
tion o#f  the  whole  matter. 

These  several  defences  have  each  a  particular  form 
in  which  they  are  to  be  presented. 

If  the  defence  is  based  upon  some  matter  which 
appears  upon  the  face  of  the  bill,  it  is  by  demurrer. 

Insurance  Co.  v.  Field,  2  Story  59. 

[f  the  defence  rests  upon  some  fact  which  does  not 
appear  upon  the  face  of  the  bill,  the  defence  is  by 
plea,  which  brings  to  the  attention  of  the  court  the 
fact  relied  upon. 

Story  Eq.  PI.  §  437. 

If  the  defence  rests  upon  the  actual  merits  of  the 
defendant's  case,  the  defence  is  by  answer. 

Story  Eq.  PI.  §  437. 

DEMURRER. 

A  demurrer  is  the  proper  mode  of  defence,  when 

the  ground  of  defence  is  a  defect  in  the  frame  of  the 

bill  or  in  the  case  made  by  it,  or  the  matter  contained 

it  it. 

•Tones  v.  Earl  of  Strafford,  3  P.  Wms.  79,  80;  Mitford'sEq.  206. 


EQUITY    PLEADING    AND    PRACTICE.  93 

The  demurrer  alleges  in  substance  that  if  the  mat- 
ters contained  in  the  bill  were  true  they  do  not  sus- 
tain the  complainant's  contention,  or  that,  for  some 
reason  apparent  on  the  face  of  the  bill,  or  because  of 
the  omission  of  some  matter,  which  ought  to  be  con- 
tained therein,  or  for  want  of  some  circumstance  which 
ought  to  be  attendant  thereon,  the  defendant  ought 
not  to  be  compelled  to  answer,  and  it  therefore 
demands  the  judgment  of  the  court  whether  the 
defendant  shall  be  compelled  to  answer  the  complain- 
ant's bill,  or  that,  particular  part  of  it  to  which  the 
demurrer  applies. 

Mitford's  Eq.  80. 

When  it  is  clear,  absolute  and  certain,  that  taking 

the  charges  made  in  the  bill  to  be  true  the  bill  will  be 

dismissed  at  the  hearing,  a  demurrer  will  lie,  but  not  if 

there  is  uncertainty  in  that  regard. 

Atterson  v.  Mair,  2  Ves.  94;  S.  C.  4  Bro.  C.  C.  270;  Havenden 
v.  Ld.  Annesley,  2  Sch.  &  Lef.  607;  Brooks  v.  Hewitt,  3  Ves.  253. 

But  while  the  demurrer  assumes  and  confesses,  for 

the  purposes  of  the  argument,  that  the  allegations  in 

the  bill  are  true,  the  admission  extends  only  to  such 

matters  as  are  well  pleaded,  matters  of    fact,  and  not 

matters  of  law,  arguments  and  inferences,  nor  false 

allegations  of  fact  of  which  the  court  is  bound  to  take 

judicial  notice.     And  when  there  are  matters  of  fact 

pleaded  which  are  repugnant  to  some  other,  that  one 

is  admitted,  which  is  of  least  benefit  to  the  pleader. 

Looke  v.  Tlolle,  3  Ves.  4-7;  Campbell  v.  Mackay,  My.  &  Cr. 
603,  613;  Wales  v.  Bank  of  Mich.,  Har.  Ch.  308;  Griffing  v.  Gibb, 


94  EQUITY    PLEADING    AND    PRACTICE. 

2  Black  U.  S.  519;  Roby  v.  Cossitt,  78  111.  638;  Croft  v.  Thomp- 
son, 51  N.  H.  530;  1  Greenl.  Ev.  §§  4,  6. 

A  demurrer  may  be  to  the  relief  prayed,  or  to  the 

discovery  or  to  both.     But  the  demurrer  must  not  be 

both    to   discovery   and    relief  if    the  complainant  is 

entitled  to  either.     If  the  demurrer  is  to  the  whole 

bill  and  the  complainant  is  entitled  to  either  discovery 

or  relief  it  will  be  overruled. 

Livingstone  v.  Story,  9  Peters  633;  Wright  v.  Dame,  1  Met 
237-241 ;  Holmes  v.  Holmes,  36  Vt.  525,  537;  Laightv.  Morgan,  .1 
Johns.  Cas.  434. 

Demurrer  to  the  relief  may  be : 

I.  To  the  jurisdiction. 

II.  To  the  person. 

III.  To  the  matter  of  the  bill,  either  in  substance 

or  form. 

I.       TO   THE   JURISDICTION. 

Demurrers  to  the  jurisdiction  are  (1)  either  on  the 
ground  that  the  case  made  by  the  bill  does  not  fall 
within  that  of  any  class  of  causes  over  which  the  court 
assumes  jurisdiction. 

A  discussion  of  the  cases  that  fall  under  this  head 
properly  belongs  to  the  subject  of  equity  jurisdiction. 

Stephenson  v.  Davis,  56  Me.  73,  74;  Cookney  v.  Anderson,  31 
Beav.  452;  Cookney  v.  Anderson,  8  Jur.  N.  S.  Part  I  1220;  Bos- 
ton Water  Power  Co.  v.  Railroad,  16  Pick.  512. 

The  demurrer  to  the  jurisdiction  may  be  (2)  on  the 
ground  that  the  subject-matter  of  the  suit  is  within 
the  jurisdiction  of  some  other  court. 

If  it  appears  from  the  bill  that  the  complainant  has 


EQUITY     I'LKADING     AND    PRACTICE.  5J5 

as  effectual  and  complete  a  remedy  at  law  as  in  equity 

the  bill  is  demurrable. 

Lynch  v.  Williard,  6  Johns.  Ch.  342;  Bank  v.  Lee,  11  Conn. 
Ill;  Hammond  v.  Messinger,  9  Sim.  327;  Ohling  v.  Luitjens,  32 
111.  23;  Parry  v.  Owen,  3  Atk.  740;  Kemp  v.  Prior,  7  Ves.  237. 

II.       TO   THE    PERSON. 

If  it  appears  on  the  face  of  the  bill  that  the  com- 
plainant cannot  maintain  the  suit  on  account  of  some 
personal  disability  that  objection  can  be  taken  by 
demurrer. 


96  EQUITY     PLEADING    AND    PRACTICE 


LECTURE    VI. 


III.       TO    THE    MATTER    OF    THE    BILL. 

Demurrers  arising  from  objections  to  the  matter  of 
the  bill  are  either  to  the  substance  of  the  bill  or  to  the 
form  in  which  it  is  stated. 

Demurrers  ii£  the  substances- are  : 

1.  That  the  plaintiff  has  no  interest  in  the  subject. 

2.  That  the  defendant  is  not  answerable  to  the 
plaintiff. 

3.  That  the  defendant  has  no  interest. 

4c.  That  the  plaintiff  is  not  entitled  to  the  relief  he 
has  prayed. 

5.  That  the  value  of  the  subject-matter  is  insuffi- 
cient to  give  the  court  jurisdiction. 

6.  That  the  bill  does  not  embrace  the  whole  of  the 
subject-matter. 

7.  That  there  is  a  want  of  proper  parties. 

8.  That  the  bill  is  multifarious. 

9.  That  the  plaintiff's  remedy  is  barred  by  lapse  of 
time. 

10.  The  Statute  of  Frauds. 

11.  That  there  is  another  suit  pending  for  the  same 
matter  between  the  same  parties. 

1.  If  there  are  several  plaintiffs  some  of  them  hav- 
ing an  interest  and  others  none  in  the  subject-matter, 
a  general  demurrer  to  the  whole  bill  is  a  good  defence. 


EQUITY    PLEADING    AND   PRACTICE.  97 

_Kimjof  Spain  v.  Ma  chad  o,  4  Rnss.  224j  Clarkson  v.  DcPeya- 
ter,  8  Paige  336-339;  Dias  v.  Boucbaud,  10  Paige  445;  HaskeUv. 
Hilton,  30  Mc.  419;  Atwell  v.  Perrett,  2  Blatch  C.  C.  39. 

2  and  3.  If  the  plaintiff  lias  an  interest  the  hill 
must  show  the  defendant  answerahle  to  him. 

Ld.  Uxbridue  v.  Stoveland,  1  Ves.  Sen.  53;  Crossing  v.  Honor, 
1  Vern.  180;  White  v.  Sinale.  23  Beav.  72. 

4.  When  the  plaintiff  prays  merely  for  some  special 

relief  to  which  he  is  not  entitled,  or  to  any  relief  of 

the  same  nature. 

Rollins  v.  Forbes,  10  Cal.  29:);  Bleeker  v.  Bingham,  3  Paige 
246;  Dike  v.  G*ant,  4  R.  I.  285;  Sayles  v.  Tibbitts,  5  R.  I.  79. 

5.  If  it  does  not  appear  on  the  face  of  the  bill  that 
the  matter  in  controversy  is  sufficient  to  give  the  court 
jurisdiction,  the  defendant  may  move  to  strike  the  bill 
off  from  the  file  or  demur. 

Carr  v.  Inglehart,  3  Ohio  St.  458;  McElwain  v.  Willis,  3  Paige 
505;  S.  C.  9  Wend.  548. 

6.  The  court  will  not  permit  a  bill  to  be  brought 
for  a  part  of  the  matter  only,  but  requires  that  every 
bill  shall  be  so  framed  as  to  afford  ground  for  decis- 
ion uponthe  whole  matter  at  one  and  the  same  time. 

Panfoy  v.  Panfoy,  l^Vecr^  29j  Margrov  v.  Le  Hooke,  2  Vern, 
207;  Jones  v.  Smith,  2  Ves.  372. 

7.  When  a  defendant  demurs  to  the  bill  for  the 
arrest  of  parties,  the  demurrer  must  point  out  who  are 
necessary  parties,  not  necessarily  by  name,  but  in  a 
manner  clearly  to  indicate  who  they  are. 

Att'y-Genl.  v.  Poole,  4  M.  &  C.  17;  Robinson  v.  Smith,  3  Paige 
222;  Story  Eq.  PI.  §  543. 

7 


98  EQUITY    PLEADING    AND    PRACTICE. 

8.  A  demurrer  for  multifariousness  goes  to  the 
whole  bill  and  it  is  not  necessary  to  specify  the  par- 
ticular parts  of  the  bill  which  are  multifarious. 

Dimmock  v.  Bixby,  20  Pick.  363;  Gibbs  v.  Claggett,  2  Gill  & 
J.  14;  Boyd  v.  Hoyt,  5  Paige  65. 

9.  The  Statute  of  Limitations  of  21   Jac.  1,  c.  16, 

did  not  in  terms  include  equitable  actions,  but  courts 

of  equity  have  been  disposed  to  treat  a  claim  as  stale 

that  was  barred  at  law,  and  in  short  to  be  governed  by 

the  statute. 

Miller  v.  Mclntyre,  6  Peters  61 ;  Denny  v.  Oilman,  26  Me.  149, 
151;  Robinson  v.  Hook,  4  Mason  139,  150;  Brown  v.  Buena 
Vista,  95  U.  S.  157. 

10.  If  it  closely  appears  on  the  face  of  the  bill  that 
the  contract  upon  which  the  complainant  rests  his 
claims  is  within  the  statute  of  frauds,  the  objection 
can  be  taken  advantage  of  by  demurrer. 

Field  v.  Hutchinson,  1  Beav.  599,  6D0;  Crenston  v.  Smith,  6 
R.  I.  231;  Dudley  v.  Bachelder,  58  Me.  403,  406. 

11.  If  it  appears,  also,  that  there  is  another  suit 
pending  in  another  court,  in  which  the  complainant 
could  obtain  the  same  relief,  the  defendant  may  de- 
mur for  that  reason. 

Low  v.  Rigby,  4  Bro.  C.  C.  60,  63;  Peareth  v.  Peareth,  9  Jur. 
N.  S.  1149. 

The  grounds  of  demurrer  to  a  bill  by  reason  of 
deficiency  in  matters  of  form  are : 

1.  Omission  to  state  complainant's  residence. 

2.  Neglect  to  state  positively,  allegations  within  the 
complainant's  knowledge. 


EQUITY    PLEADING     AND    PRACTICE.  99 

3.  Lack  of  certainty  in  the  bill. 

4.  Failure  of  the  complainant  to  offer  to  do  equity. 

5.  Want  of  counsel's  signature  to  the  bill. 

6.  Neglect  to  verify  in  those  cases  where  the  statute 
or  rules  require  the  bill  to  be  sworn  to. 

The  above  grounds  of  demurrer  are  simply  an  enu- 
meration of  the  essentials  of  a  bill  in  equity  which 
we  have  already  pointed  out. 

The  defendant  may  not  only  demur  to  the  relief, 
but  he  may  demur  to  the  discovery  sought  when  the 
complainant  is  entitled  bjT  his  bill  to  relief.  The 
several  grounds  of  demurrer  to  discovery  are  : 

1.  That  the  discovery  may  subject  the  defendant  to 
some  penalty  or  forfeiture.  The  defendant  will  not 
be  required  to  either  criminate  himself  or  place  him- 
self in  a  position  in  which  he  may  be  prosecuted. 

Harrison  v.  Soutbcote.  1  Atk.  539;  Duke  v.  Harper,  66  Mo.  51; 
ATlyn  v.  Hanna,  47  Iowa  264;  McPherson  v.  Cox,  96  U.  S.  404; 
Livingston  v.  Tompkias,  3  Johns.  Ch.  452;  U.  S.  v.  Twenty- 
eight  Packages.  Gilpin  0.  C.  306. 

2.  Because  in  equity  and  good  conscience  the  de- 
fendant's right  is  equal  to  the  complainant's.  If  for 
example  the  defendant  has  in  conscience  as  good  a 
title,  but  not  as  perfect  a  legal  title  as  the  complain- 
ant, he  will  not  be  compelled  to  make  a  discovery 
which  will  endanger  his  own  title. 

Howell  v.  Ashman,  1  Stockt,  (N.  J.)  83;  Glegg  v.  Legh,  4 
Mad.  104;  Story  Eq.  P.  §§  603,  604;  Boone  v.  Chiles,  10  Peters 
177;  McNeil  v.  Magee,  5  Mason  209. 

3.  Because  the  discovery  sought  is  immaterial  to 
the  relief  prayed.     The  complainant  is  not  entitled  in 


100  EQUITY    PLEADING    AND    PEACTICI5. 

equity  any  more  than  at  law  to  introduce  immaterial 

evidence.     Therefore,  if  lie  calls   upon  the  defendant 

to  answer  interrogatories  in  reference  to  some  matter 

which  is  immaterial,  the  defendant  ma}'  demur  to  that 

much  of  the  discovery  for  immateriality. 

Lord  Montague  v.  Dudman,  3  Ves.  Sen.  396,  393;  Baker  v. 
Pritchard,  2  Atk.  388;  Iliucks  v.  Melthrope,  1  Vern.  204. 

4.  Because  the  discovery  would  be  a  breach  of  pro- 
fessional confidence.  All  confidential  communications 
between  attornej'  and  client,  husband  and  wife,  phy- 
sician and  patient,  priest  and  penitent,  may  not  be 
disclosed  in  any  proceeding,  either  at  law  or  in  equity. 
And  if  the  plaintiff  seeks  to  have  the  defendant  make 
any  such  disclosure,  he  may  demur  to  that  part  of  the 
discovery,  if  it  appears  on  the  face  of  the  bill  that  the 
information  is  in  fact  confidential. 

State  v.  White,  19  Kan.  445;  Insurance  Co.  v.  Schaffer,  94  U. 
8.  457;  Bigler  v.  Reyher,  43  Ind.  112;  Barnham  v.  Roberts,  70 
111.  19. 

5.  That  the  discovery  relates  only  to  the  defendant's 

case.     The  complainant  is  not  entitled  to  obtain  from 

the  defendant  a  disclosure  of  facts  material  only  to 

the  defence.     For  example,  where  the  plaintiff  and 

defendant  claim  through  adverse  sources  of  title,  the 

one  is  not  entitled  to  the  other's  evidences  of  title. 

Ingilby  v.  Shaf  to,  33  Beav.  31 ;  Joy  v.  Kekewick,  2  Ves  Jr. 
679;  Badou  v.  Dure,  2  Ves.  Sen.  445;  Moore  v.  Caron,  L.  R.  7 
Ch.  App.  94,  note. 

6.  That  the  discovery  might  be  injurious  to  the 
public  interest.     This  ground  of  objection  is  confined 


EQUITY    PLEADING    AND    PRACTICE.  101 

to  information  which  the  defendant  has  obtained  while 

occupying  a  public  or  semi-public  position. 

Smith  v.  East  India  Co.,  1  Phil.  50,  55,  6  Jur.  1;  Bellows  v. 
Stone,  18  N.  II.  465,  485;  1  Greenl.  Ev.  %$  250,  251. 

Any  irregularities  in  the  frame  of  the  bill  may  be 

taken  advantage  of  by  demurrer,  which  will  be  deemed 

to   have  been  waived   if  the   defendant   consents  to 

answer. 

Reedy  v.  Soott,  23  Wall.  352,  365;  Hubbard  v.  Turner,  2  Mc- 
Lean, 519,  539;  Campbell  v.  Foster,  2  Tenn.  Ch.  402. 

A  demurrer  cannot  be  good  in  part  and  bad  in  part, 
but  the  defendant  may  put  in  separate  and  distinct 
demurrers  to  separate  and  distinct  parts  of  the  bill 
for  separate  and  distinct  causes,  and  in  that  case  one 
demurrer  may  be  sustained  and  another  overruled. 

Mayor  of  London  v.  Levy,  8  Ves.  39?,  403;  Biker  v.  Mullish, 
11  Ves.  68,  70;  North  v.  Stafford,  3  P.  Wms.  149;  Itober  leau  v. 
Rous,  1  Atk.  543;  Barstow  v.  Smith,  Walk.  Ch.  3J4;  Railroad 
v.  Schuyler,  17  N.  Y.  592. 

FORM    OF   DEMURRER. 

The  demurrer  must  be  entitled  in  the  cause.  In- 
deed, all  the  papers  filed  in  a  cause,  or  served  after  the 
bill,  are  to  be  entitled.  Following  the  title  is  the 
heading,  indicating  whether  it  is  a  joint  or  several 
demurrer,  whether  it  is  to  the  whole  or  a  part  of  the 
bill,  and  if  to  a  part,  whether  it  is  accompanied  by  a 
plea,  or  answer,  or  both.  Then  comes  the  protestation 
of  the  defendant  as  to  the  truth  of  the  matters  con- 
tained in  the  bill.     The  object  of  this  protestation  ia 


102  EQUITY    PLEADING    AND    PRACTICE. 

to  avoid  a  tacit  admission,  either  in  this  or  some  other, 
suit  of  the  truth  of  the  averments  in  the  bill. 
Story  Eq.  PI.  §§  453,  457. 

The  demurrer  then  proceeds,  if  it  is  to  a  part  and 
not  to  the  whole  bill,  to  point  out  distinctly  those 
parts  of  the  bill  to  which  it  applies.  The  rule  as  to 
this,  given  by  Lord  Iiedesdale,  is:  "That  where  a 
defendant  demurs  to  part,  and  answers  to  part  of  a 
bill,  the  court  is  not  to  be  put  to  the  trouble  of  look- 
ing into  the  bill  or  answer  to  see  what  is  covered  by 
the  demurrer;  but  it  ought  to  be  expressed  in  clear 
and  precise  terms  what  it  is  that  the  party  refuses  to 
answer,  and  I  cannot  agree  that  it  is  the  proper  way 
of  demurring  to  say  that  the  defendant  answers  to 
6uch  a  particular  fact  and  demurs  to  all  the  rest  of  a 
bill ;  the  defendant  ought  to  demur  to  a  particular 
part  of  the  bill,  specifying  it  precisely." 

Deomsher  v.  Newenham,  2  Sch.  Lef.  199,  205;  Atwell  v.  Fer 
rett,  2  Blatch.  C.  C.  39;  Story  Eq.  PI.  £§  457,  458. 

Since  a  demurrer  cannot  be  good  in  part  and  bad 
in  part,  and  the  defendant  is  permitted  to  put  in  sep- 
arate demurrers  to  separate  parts  of  the  bill,  this 
should  be  done  when  the  pleader  is  in  doubt  whether 
a  given  ground  of  demurrer  covers  more  than  one 
part  of  the  bill.  But  where  there  are  two  or  more 
separate  demurrers  to  different  parts  of  the  bill,  each 
must  point  out  distinctly  what  part  of  the  bill  each  is 
intended  to  cover. 

Mynd  v.  Francis,  1  Anst.  5;  Burch  v.  Coney,  14  Jur.  1009. 

A  demurrer  is  said  to  be  general  when  it  is  to  the 


EQUITY    PLEADING    AND    PRACTICE.  103 

jurisdiction,  or  the  substance  of  the  bill,  and  special 
when  it  is  to  a  defect  in  the  form  ;  but  whether  gen- 
eral or  special  it  must  assign  some  cause  of  demurrer, 
and  it  will  not  be  good  if  the  defendant  says  generally 
that  he  demurs  to  the  bill. 

Duffleld  v.  Graves,  Casey  87;  OfTely  v.  Morgan,  Casey  107; 
Peache  v.  Twyecrosse,  Casey  118;  Nash  v.  Smith,  G  Conn.  421; 
Howland  v.  Kenosha,  19  Wis.  264;  Wellhorn  v.  Tiller,  10  Ala. 
305. 

A  defendant  may  demur  generally  to  the  whole 
bill,  and  assign  as  cause  want  of  equity,  without  being 
more  specific : 

1.  When  the  facts  stated  are  insufficient  to  entitle 
the  plaintiff  to  relief. 

2.  When  he  has  omitted  to  verify  the  bill,  when 
that  is  necessary. 

3.  When  he  has  neglected  to  offer  to  do  equity  in 
cases  where  such  an  offer  ought  to  be  made. 

4.  When  the  allegations  of  fact  within  the  personal 
knowledge  of  the  complainant  are  not  made  with 
sufficient  positiveness. 

The  reason  for  the  rule  in  all  these  cases  is  that  the 
plaintiff,  by  his  bill,  does  not  bring  his  case  within 
the  description  of  cases  over  which  the  court  exercises 
jurisdiction. 

Caren  v.  Johnson,  2  Sell.  Let'.  230;  2  Danl.  Ch.  Pr.  1  ed.  73. 

But  in  all  cases  of  general  demurrer,  the  pleader 
may  point  out  the  specific  objections,  and  in  some 
cases  he  is  required  to  do  so.     When  there  is  a  want 


104  EQUITY    PLEADING   AND   PRACTICE. 

of  parties,  he  must  point  out  who  the  proper  parties 
are,  and  for  multifariousness,  that  specific  objection. 
Royner  v.  Julien,  2  Dick.  677. 

Objections  for  want  of  jurisdiction  and  want  of 
equity  should  be  taken  by  separate  demurrers. 

Barber  v.  Barber,  5  Jur.  N.  S.,  Part  I.,  1197. 


EQUITY    PLEADING    AND    PRACTICE.  105 

if 

LECTURE    VII. 


DEMURRER    CONTINUED. 

In  assigning  cause  for  demurrer  care  must  be  taken 
that  no  new  fact  is  imported  into  the  bill.  A  bill 
which  alleges  a  fact  not  contained  in  the  bill  is  termed 
a  speaking  demurrer  and  for  that  reason  will  be  over- 
ruled. 

QEdsall^  Buchanau,_U|rp-  0.    C.  254;   S.  C.  2  Ves.  Jr.  83; 
Brooks  v.  Gibbons,  4  Paige  375. 

If  the  fact  imported  is  immaterial  and  is  not  relied 

upon  to  support  the  demurrer  it  will  be  treated  as 

surplusage. 

Jones    v.    Charlemont,    12    Jur.  532;    Knypus  v.    Reformed 
Dutch  Church,  6  Paige  570;  Davis  v.  Williams,  1  Sim.  5,  8. 

Not  onl}7  may  more  than  one  demurrer  be  filed,  but 

more  than  one  cause  for  demurrer  may  be  assigned  in 

the  same  demurrer. 

Brinkerliolf  v.  Brown,    (5    Johns.   Ch.  139,  149;  Robinson  v. 
Smith,  3  Paige  222-231. 

And  the  pleader  at  the  hearing  of  a  demurrer  may 
also  assign  one  or  more  causes  of  demurrer  in  addition 
to  those  already  assigned.  This  is  called  demurring 
ore  tenus.  Causes  of  demurrer  assigned  ore  tenus 
must,  however,  be  co-extensive  with  the  demurrer 
filed.  A  cause  of  demurrer  which  goes  to  a  part  of 
the  bill  cannot  be  assigned  ore  temis  upon  the  argu- 
ment of  demurrer  to  the  whole  bill. 
Crouch  v.  Hicken.  1  Keen  385;  Pitts  v.  Short,  17  Ves.  213,  216; 


106  EQUITY    PLEADING    AND    PRACTICE. 

Rump  v,  Grcenbill,  20  Beav.  512:   Thompson  v.  University  of 
London,  10  Jur.  N.  S.  66!),  671. 

While  a  defendant  may  demur  as  to  a  part  of  the 
bill,  plead  as  to  another  part  and  answer  as  to  an- 
other, these  defences  cannot  be  united  as  to  any  one 
part  or  the  whole  bill  for  the  reason  that  they  are 
defences  which  are  inconsistent.  The  demurrer 
demands  the  judgment  of  the  court  as  to  whether  the 
defendant  shall  be  compelled  to  answer,  if  he  theo 
answers,  it  must  be  presumed  that  he  has  purposely 
waived  the  objection  made.  Formerly  this  rule  was 
enforced  with  great  strictness  and  it  was  held  that  the 
answer  overruled  the  demurrer  even  if  the  part  of  the 
bill  covered  by  the  answer  was  immaterial,  and  that  it 
had  a  like  effect  if  it  answered  some  part  of  the  bill 
which  might  have  been  covered  by  the  demurrer. 
And  the  effect  of  the  plea  is  the  same  as  an  answer,  it 
being  regarded  as  a  special  answer. 

Tiddv.  Clare,  2  Dick.  712;  Hester  v.  Weston,  1  Vern.  463; 
j> Clark .y^JPh el ps,  6  Johns.  Cb^gjjj  Pieri  v.  Shiedsborro,  42  Miss. 
493;  Chase*s~Case,  1  Bland  217~T~ 

The  above  rule  has  been  modified  by  the  rules  of 

practice  in  the  chancery  court  of  this  state,  and  of  the 

United  States. 

Mich.  Rule  41,  42;  U.  S.  Rules  36,  37. 

The  demurrer  must  be  signed  by  counsel,  but,  since 
it  relies  upon  matters  appearing  upon  the  face  of  the 
bill  it  need  not  be  signed  by  defendant  or  sworn  to.  It 
must  be  filed  and  a  copy  served  upon  the  solicitor  for  the 
complainant  within  the  time  prescribed  by  the  rules. 

Mich.  Rule  11;  U.  S.  Rule  18. 


EQUITY    PLEADING    AND    PEACTIOE.  107 

By  the  31st  United  States  rule  a  demurrer  cannot 
be  filed  unless  it  is  accompanied  by  certificate  of 
counsel,  that  in  his  opinion  it  is  well  founded  in  law, 
and  supported  by  the  affidavit  of  defendant  that  it  is 
not  interposed  for  delay  merely. 

Under  the  practice  of  this  State  (Rule  l25)  the  com- 
plainant may  within  twenty  days  after  the  demurrer  is 
filed  amend  his  bill.  If  the  bill  is  not  amended  either 
party  may  set  it  down  for  argument.  In  the  United 
States  courts  complainant  must  set  down  the  demurrer 
for  argument,  and  if  he  neglects  to  do  so,  he  will  be 
presumed  to  admit  its  sufficiency,  and  the  bill  of  com- 
plaint will  be  dismissed. 

U.  S.  Rules,  33,  38. 

Upon  the  arguments  of   the  demurrer  tbe  facts  in 

the  bill,  or  that  part  of  it  covered  by  the  demurrer, 

which  are  well  pleaded,  as  we  have  said,  are  assumed 

to  be  true.     If  the  demurrer  is  sustained  the  court  in 

effect  says  that  the  bill  is  insufficient   in  whole  or  in 

part,  and  the  plaintiff's  cause  would,  to  that  extent  be 

finally  disposed  of,  if  he  was  not  permitted  to  amend 

his   bill.     This    permission    is  always   granted    upon 

request  if  the  defect  upon   which  the  demurrer  was 

grounded  is   one   that   the   plaintiff  can   cure  by  an 

amendment. 

Lord  Comingshy  v.  Jekyll,  2  P.  Wins.  300;  Bank  of  Michigan 
v.  Niles,  Walk.  Ch.  398. 

The  effect  of   overruling  a  demurrer  is  to  require 

the  defendant  to  answer.     The  admission  of  the  truths 

of  the  allegations  of  the  bill   made  by  the  demurrer 


108  EQUITY    PLEADING    AND    PRACTICE. 

are  admissions  for  the  purpose  of  the  argument  solely, 
and  consequently  such  admission  does  not  entitle  the 
complainant  to  a  decree.  He  is  no  nearer  a  decree 
than  he  was  before,  except  he  has  obtained  the  judg- 
ment of  the  court  that  his  bill  in  form  and  substance 
is  good  and  sufficient.  The  defendant  is  not  required 
to  ask  the  leave  of  the  court  to  answer.  He  is  required 
to  answer.  He  by  his  demurrer  asked  the  judgment 
of  the  court  if  he  should  be  required  to  answer,  and 
he  has  obtained  that  judgment,  and  must  answer. 

Sometimes  when  the  court  is  in  doubt  it  will  over- 
rule the  demurrer  and  reserve  the  question  of  the 
sufficiency  of  the  bill  to  the  hearing. 

Brownswonl  v.  El  wards,  2  Ves.  Sr.  243,247;  Thomas  v.  Tyler, 
8  Y.  &Coll,  255;  1  Danl.  Ch.  Pr.  (5th  ed.)  267,  2G3,  4G5,  4G6; 
Trafford  v.  Wilkinson,  3  Tenn.  Ch.  449;  Forbes  v.  Turkeman. 
115  Mass.  115. 

It  is  discretionary  with  the  court  where  a  demurrer 

is  meritorious,  but  is  overruled  on  account  of  some 

technical  defect,  to  permit  the  defendant  to  demur  a 

second  time. 

Devonsher  v.  Newenham,  2  Sch.  &  Lef.  190;  Glegg  v.  Legh, 
4  Mad.  207;  Thorpe  v.  Macauley,  5  Mad.  218;  Baker  v.  Mellich, 
11  Ves.  G3. 

And  sometimes  when  the  bill  has  been  so  artfully 
drawn  that,  admitting  its  several  allegations,  the  de- 
murrer must  be  overruled,  the  court  will  permit  the 
defendant  to  make  the  defence  he  sought  to  make  by 
demurrer,  by  plea,  putting  in  issue  some  fact  fatal  to 
the  plaintiff's  cause.  But  since  but  one  dilatory  plea 
is  permitted  without  leave  of  the  court,  if  the  defend- 


EQUITY    PLEADING    AND    PRACTICE.  100 

ant  desires  to  plead  to  the  same  part  of  the  bill  to 
which  he  has  demurred,  he  must,  before  filing  his 
plea,  obtain  the  leave  of  the  court. 

Rowley  v.  Eecles,  1  S  &  S.  512;  Hudson  v.  Hudson,  1  S.  &  8. 
512,  note;  Milford's  Eq.  (Tyler  td.)  310. 

PLEAS. 

There  may  be  some  fact  which,  while  it  does  not  go 
to  the  merits  of  the  con  trovers}7,  is  decisive  of  the 
rights  of  the  parties  to  the  cause.  As  we  have  seen, 
if  this  appears  upon  the  face  of  the  bill  the  defendant 
can  take  advantage  of  it  by  demurrer.  If  it  docs  not 
appear  upon  the  face  of  the  bill  it  may  be  taken 
advantage  of  by  plea. 

Pleas  are  divided  into  three  classes. 

1.  Pure  or  affirmative. 

2.  Negative. 

3.  Anomalous. 

This  division  is  due  primarily  to  the  allegations 
contained  in  the  bill  with  reference  to  the  fact  pleaded. 

The  complainant  may,  in  his  bill,  make  no  refer- 
ence whatever  to  a  fact  which  is  a  complete  bar  to 
his  action.  In  that  case  all  that  is  necessary  for  the 
defendant  is  to  plead  such  fact  affirmatively,  i.  e.,  to 
aver  by  pica  the  existence  of  such  fact,  that  would 
be  an  affirmative  plea.  Again,  the  bill  may  state 
affirmatively  the  existence  of  some  particular  fact  upon 
which  his/vholc  right  of  action  depends,  and  that  par- 
ticular allegation  may  be  false.  It  is  necessary  for 
the  defendant  in  such  a  case  to  plead  the  non-existence 


110  EQUITY    PLEADING    AND    PRACTICE. 

of  that  particular  fact  alleged,  to  negative  that  much 
of  the  bill.  That  would  be  a  negative  plea.  Or 
again,  the  complainant  may  set  forth  in  his  bill  the 
apparent  existence  of  a  fact  which  is  a  complete  bar 
to  his  action,  and  then  allege  certain  other  facts  and 
circumstances  which  show  that  in  truth,  it  is  no  bar. 
In  such  a  case  the  plea  must  affirm  the  existence  of 
the  fact  admitted  by  the  bill,  and  then  negative  all 
those  facts  and  circumstances  alleged  in  the  bill  tend- 
ing to  destroy  its  effect  as  a  bar.  That  would  be  an 
anomalous  plea. 

It  will  be  noticed  at  the  outset  that  pleas  differ 
materially  from  demurrers.  A  demurrer  takes  the 
bill  as  drawn  and  assuming  that  all  its  allegations  are 
true,  points  out  some  defect  appearing  upon  its  face. 
Such  defect  very  seldom  goes  to  the  very  heart  of  the 
plaintiff's  cause  of  action.  It  is  usually  some  fact 
showing  a  disability  in  the  parties,  want  of  jurisdic- 
tion in  the  court,  or  some  inherent  defect  in  the  case 
as  stated.  Pleas  not  only  include  all  these  special 
objections  when  they  do  not  appear  on  the  face  of  the 
bill,  but  they  also  include  a  large  number  of  defences 
which  go  to  the  merits  of  the  cause  in  some  one  par- 
ticular, which  are  decisive  of  the  suit  upon  the  merits. 
The  plea  is  therefore  frequently  in  its  nature  a  special 
answer  to  the  case  made  by  the  complainant,  and  it  is 
in  its  particular  character  as  an  answer  which  a  plea 
possesses  that  we  find  the  reason  for  certain  rules  that 
have  been  adopted]  with  reference  to  them.     As  we 


KQUTTY    PLEADING    AND    PRACTICE.  Ill 

shall  see  hereafter,  a  plea  is  frequently  ordered  by  the 
court  to  stand  as  an  answer. 

The  plea  must  be  single.  It  must  present  a  single 
ground  of  defence  which  will  be  decisive  of  the  con- 
troversy, or  of  so  much  of  the  plaintiff's  claim  for 
relief  or  discovery  as  is  covered  by  the  plea,  and  a 
plea  presenting  two  or  more  grounds  of  defence  is  bad. 

flNobkissen  v.  Hastings.  2  Ves.  83:  Whittled  v.  Brockhurst,  1 
Bro.  C.  C.  404;  Coath  v.  Jackson,  6  Ves.  11;  Albany  City  Bk  v. 
Dorr,  Walk.  Ch.  317,  322;  Goodrich  v.  Pendleton,  3  Johns.  Ch. 
£22;JRtiode  Island  v.  Massachusetts,  14  Peters,  210;  Loud  v.  Sar- 
gent, 1  Edw.  Ch.  163. 

This  rule  does  not  preclude  the  pleader  from  setting 
forth  in  the  plea  all  the  facts  tending  to  establish  his 
single  defence.  Multifariousness  in  a  plea  is  not  pro- 
duced by  the  averment  of  several  separate  and  distinct 
facts,  all  of  which  tend  to  establish  a  single  proposi- 
tion, but  separate  propositions,  either  of  which  is  a 
separate  defence. 

#  Fox  v.  Yeates,  24  Beav.  271;  Harrison  v.  Southcote,  1  Atk. 
528. 

The  pleader  may,  however,  sometimes  obtain  leave 

of  the  court  to  file  a  double  plea.     This  is  sometimes 

necessary,  especially    when   the  bill  has  been  drawn 

with  a  double  aspect.     Thus,  where  a  bill  was  drawn 

seeking  to  charge  real  estate  with  certain  debts  of  the 

ancestor,   and  alleged    that    they    were :      1.  Made  a 

charge  by  the  will ;  and,  2,  if  not  made  a  charge  by 

the  will,   they  were  a  charge  from  the  fact  that  the 

ancestor  was  a  trader.     The  court  permitted  a.  plea  to 

be  filed  denying  the  allegation  that  the  will  made  the 


112  EQUITY    PLEADING    AND    PRACTICE. 

debts  a  charge  upon  the  real  estate,  and  also  as  to  the 
ancestor  being  a  trader,  which  would  make  them  a 
charge  under  the  statute. 

Gibsonj.  Whitehead,  4J\lad^l29,  241;  Hardman  v.  Ellames, 
5  Sim.  010;  Kay  v.  Marshall,  f  Keen  190,  192. 

The  reason  for  the  rule  that  a  plea  must  he  single  is 
that  the  advantage  which  a  plea  has  over  an  answer  in 
shortening  the  proceedings,  would  be  destroyed  if  the 
pleader  were  permitted  to  introduce  into  his  plea  more 
than  one  defence.  When  he  is  permitted,  by  leave 
of  the  court,  to  plead  more  than  one  defence  to  the 
same  bill,  or  the  same  part  of  a  bill,  he  must  not  unite 
the  separate  defences  in  the  same  plea,  but  file  sep- 
arate pleas. 

Gibson  v.  Whitehead,  4  Mad.  129,  241;  Scott  v.  Broadwood,  2 
Coll.  C.  C.  447;  Haidman  v.  Ellames,  5  Sim.  640;  Benson  v. 
Jones,  1  Tenn.  Ch.  498;  Brinkerhoff  v.  Brown,  7  Johns.  Ch.  216; 
Salliers  v.  Tobias,  7  Johns.  Ch.  214. 

A  plea  cannot  be  made  to  perform  the  office  of  a 
demurrer.  If  it  sets  forth  no  new  matter,  but  relies 
upon  the  allegations  contained  in  the  bill,  it  will  be 
overruled. 

Black  v.  Black,  15  Ga.  445;  Andrews  v.  Lockwood,  11  Jur.  956. 

The  plea  must  clearly  and  distinctly  aver  all  the 
facts  necessary  to  render  it  a  complete  defence  to  the 
case  made  by  the  bill  so  far  as  the  plea  extends. 
When  such  facts  are  within  the  knowledge  of  the 
defendant,  they  must  be  averred  positively,  but  when 
they  are  not  within  his  personal  knowledge,  they  may 
be  averred  upon  information  and  belief.     All  intend- 


EQUITY    PLEADING    AND    PRACTICE.  113 

ments  against  the  pleader  must  be  excluded  by  proper 

averments  of  facts,  and  not  conclusions  of  law. 

Parker  v.  Parker,  Walk.  Ch.  457.  458;  Drew  v.  Drew,  2  V.  & 
B.  159;  Madison  v.  Watertown,  5  Wis.  173. 

For  example : 

L  When  the  defendant  pleads  want  of  proper  par- 
ties, that  fact  not  appearing  on  the  face  of  the  bill, 
the  objection  must  be  made  in  a  clear  and  explicit 
manner,  and  the  plea,  like  the  demurrer,  must  show 
who  are  the  proper  parties. 

Robinson  v.  Smith,  3  Paige  222;  Mitchell  v.  Lennox,  2  Paige 
280. 

2.  The  plea  of  another  suit  pending  for  the  same 
cause,  and  for  like  relief,  is  insufficient.  The  plea 
should  set  forth  the  general  character  and  objects  of 
such  suit,  and  the  relief  prayed. 

Bank  of  Michigan  v.  Williams,  Hir.  Ch.  219;  Bell  v.  Read  3 
Atk.  590;  Lyon  v.  Brock  way,  14  Johns.  Rep.  501. 

3,  A  plea  of  a  stated  account  must  aver  that  the 
accounts  were  just  and  fair,  and  those  averments  must 
be  supported  by  an  answer  to  the  same  effect. 

Schwartz  v.  Wendell,  Har.  Ch.  395. 

When  the  defence  is  based  upon  some  fact  which 

has  arisen  after  the  filing  of  the  bill,  and  before  other 

defence  is   put  in,  it  can  be  taken  advantage  of  by 

plea,  but  if  the  defence  has  been   made,  it  must  be 

taken  advantage  of  by  supplemental  or  cross  bill. 

Payne  v.  Beach,  2  Tenn.  Ch.  708;  Miller  v.  Fenton,  11  Paige  18; 
j^Lane  v.  Smith,  14  Beav.  49;  Wallace  v.  Dunning,  Walk.  Ch.  416. 

It  is  within  the  discretion  of  the  court  to  permit  a 


114*  KQUITY    PLEADING    AND    PRACTICE. 

plea  to  be  amended  when  the  application  for  the  pur- 
pose shows  mistake,  inadvertence,  etc. 

Freeman  v.  Michigan  Bank,  Har.  Ch.  811;  Greene  v.  Harris, 
11  R.  I.  5. 

We  have  seen  that  a  demurrer  admits,  for  purposes 
•of  the  argument,  that  all  the  facts  well  pleaded  in  the 
bill  are  true,  but  introduces  no  new  fact.  The  pur- 
pose of  the  plea  on  the  other  hand,  is  to  call  the  atten- 
tion of  the  court  to  a  fact  not  appearing  on  the  face  of 
the  bill,  which  is  a  bar  to  the  plaintiff's  action;  but 
while  the  pleader  may  deny  any  allegation  of  fact 
made  in  the  bill,  yet  the  plea  admits  all  the  allegations 
of  the  bill,  which  it  does  not  by  averment  deny.  It  fol- 
lows, therefore,  that  when  there  are  any  allegations  of 
fact  in  the  bill  inconsistent  with  the  plea,  such  allega- 
tions must  be  negatived  by  specific  averments  in  the 
plea,  otherwise  the  pleader  would  by  his  plea  aver  a 
fact  and  by  the  same  plea  constructively,  but  none  the 
less  positively,  admit  the  truth  of  an  allegation  in  the 
bill  wholly  at  variance  with  his  averment.  It  is  therefore 
necessary  for  the  pleader  in  drawing  his  plea,  to  ex- 
amine the  bill  and  to  negative  by  positive  averment 
every  allegation  contained  therein  which  is  inconsis- 
tent with  the  truth  of  the  plea. 

Formerly,  one  of  the  principal  objects  gained  by  a 
plea,  was  to  prevent  a  discovery  on  the  part  of  the  de- 
fendant. It  is  evident  that  if  the  defence  made  by 
the  plea  goes  to  the  whole  bill,  that  the  complainant  has 
no  right  to  discovery,  since  he  has  no  right  of  action. 
Therefore,  if  there  are  no  allegations  in  the  bill  which 


EQUITY    PLEADING    AND    PRACTICE.  115 

rend  to  negative  the  plea,  or  in  other  words,  to  dis- 
prove the  existence  of  the  particular  fact  which  the 
plea  avers  and  sets  up  as  a  special  defence,  the  pleader 
is  not  required  to  make  any  answer  to  the  bill  what- 
ever. 

If,  however,  there  are  allegations  of  fact  in  the 
bill  negativing  the  truth  of  the  plea,  the  plaintiff  is  enti- 
tled to  discovery.  They  are  put  in  issue  by  the  aver- 
ments of  the  plea,  and  the  plaintiff  is  entitled,  as  to 
them,  to  have  the  defendant's  testimony.  Therefor, 
the  pleader  must  not  only  in  his  plea  negative,  by 
proper  averments,  all  the  allegations  in  the  bill  inconsis- 
tent with  the  truth  of  the  plea,  but  he  must  also  answer 
fully  and  explicitly,  as  to  those  allegations.  Such  an 
answer  is  said  to  be  an  answer  in  support  of   the  plea. 

These  rules  are  applicable  to  all  pleas  whether 
pure,  negative  or  anomalous. 


116  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  VIII.. 


PURE    PLEAS. 

A  pure  plea  is  one  which  avers  some  fact  not  ap- 
pearing upon  the  face  of  the  bill,  as  a  bar  to  the  plain- 
tiff's claim. 
_2  Daniels  Oh.  Pr^Q  Ed.)  97. 
The  theory  upon  which  the  pleader  proceeds  with 
the  affirmative  plea  is,  assuming  that  the  allegations 
of  the  bill  are  true,  that  there  is  a  fact  or  circumstance 
not  mentioned  in  the  bill,  which  is  a  good  and  sufficient 
reason  why  the  complainant  should  not  be  permitted 
to  proceed  with  his  suit.  The  court  in  order  to  save 
expense  to  the  parties  decides  upon  the  validity  of  the 
objection,  taking  the  bill  so  far  as  it  is  not  contradicted 
by  the  plea  as  true. 

NEGATIVE    PLEAS. 

But  there  are  cases  in  which  some  allegation  made 
in  the  bill  and  which  is  absolutely  essential  to  the 
complainant's  right  to  be  heard  is  denied  by  the  de- 
fendant. For  instance  A  may  file  a  bill  against  B, 
claiming  to  do  so  as  the  heir  of  C,  and  A  may  deny 
that  he  is  in  fact  the  heir  of  C.  This  is  called  a  nega- 
tive plea,  and  always  by  its  averments  denies  the 
truth  of  some  allegation  in  the  bill  which  is  vital  to  the 
complainant's  case.  It  was  at  first  held  that  such  a 
plea  could  not  be  tiled.       Lord  Thurlow  so  decided  in 


EQUITY    PLEADING    AND    PRACTICE.  117 

1787  in  a  cause  where  the  complainant  claimed  to  be 

the  heir  of  a  certain  person  and  the  defendant  sought 

by  plea  to  deny  that  allegation  in  the  bill. 

0  Newman  v.  JVallace_£  Bro.  Q^C.  US^Jjfi^flnnn  v    Prior,  2 
ni£iL_657. 

The  Chancellor  himself,  however,  afterwards  ad- 
mitted that  he  had  arrived  at  a  wrong  conclusion,  and 
since  then  negative  pleas  have  been  allowed. 

♦3  Hall  v.  Noyes,  3  Bro.  C.  C.  483:L489iJ^MsjJtogfe^yes^62. 
— "  o 

ANOMALOUS    PLEAS. 

An  anomalous  plea  is  resorted  to  in  those  eases  where 
the  bill  admits  the  existence  of  a  certain  fact,  and  then 
by  distinct  allegations  seeks  to  avoid  the  legal  effect 
of  such  fact,  by  setting  up  fraud  or  mistake.  The 
anomalous  plea  avers  the  existence  of  the  fact 
admitted  by  the  bill  and  then  denies  the  allegations 
of  mistake  or  fraud  contained  in  the  bill.  For  exam- 
ple, suppose  A  and  B  had  been  copartners  and  upon 
the  dissolution  of  the  copartnership  had  submitted  the 
differences  between  them,  growing  out  of  the  partner- 
ship business,  to  arbitrators  who  had  duly  made  an 
award.  A  afterwards  files  a  bill  against  B  praying 
for  an  accounting  of  the  partnership  business.  Now, 
if  he  said  nothing  about  the  arbitration  and  award  in 
his  bill,  B  could  by  an  affirmative  plea  set  that  up.  But 
in  such  a  case  the  bill  probably  would  not  be  silent  on 
the  snbject  of  the  arbitration,  and  would  allege  that 
there  had  been  an  arbitration  and  a  pretended  award, 
but  that  said   award  was   null  and  void  because,  for 


118  EQUITY    PLEADING    AND    PBAOHOE. 

instance,  there  had  been  collusion  between  the  arbi- . 
trators  and  B,  and  it  would  then  set  forth  several 
alleged  facts  and  circumstances  which  if  true  would 
tend  to  establish  the  collusion  and  fraud.  In  such  a 
case  B  must  resort  to  an  anomalous  plea,  averring  the 
arbitration  and  award,  denying  collusion  and  fraud 
and  specifically  denying  each  allegation  of  fact  in  the 
bill  tending  to  establish  such  collusion  and  fraud,  and 
this  plea  must  be  supported  by  an  answer  making  a 
full  disclosure  in  regard  to  all  the  allegations  in  the 
bill  tending  to  show  collusion  and  fraud.  The  com- 
plainant is  entitled  to  have  the  allegations  of  fraud 
denied,  because  his  right  of  actions,  as  appears  from 
his  bill,  depends  upon  his  showing  collusion  and 
fraud.  Otherwise,  when  he  tiled  his  replication  to 
the  plea,  he  would  put  in  issue,  not  the  existence  of 
the  facts  showing  fraud,  upon  which  he  depends 
solely  for  relief,  but  upon  the  facts  appearing  in  the 
plea,  that  is  the  existence  of  the  award  about  which 
there  is  no  dispute.  But  if  the  plea  traverses  the 
allegations  of  fraud,  then  a  replication  to  the  plea  puts 
those  allegations  in  issue.  The  defendant  must  trav- 
erse all  the  allegations  tending  to  negative  the  plea,  in 
the  plea  itself,  but,  as  we  have  said,  the  plea  must  be 
accompanied  by  an  answer  in  its  support  in  which  such 
allegations  shall  be  fully  and  explicitly  answered.  The 
plea  traverses  the  allegations  in  the  bill  tending  to 
negative  the  plea,  in  order  that  the  truth  of  those 
allegations  may  be  put  in  issue.  The  plea  must  be  sup- 
ported by  an  answer  as  to  those  same  allegations  for  a 


EQUITY    PLEADING    AND    PRACTICE.  119 

very  different  but  equally  satisfactory  reason.  The 
complainant  is  entitled  to  a  full  discovery  from  the 
defendant  of  all  the  facts  within  his  knowledge  or 
belief  which  tend  to  establish  the  complainant's  right 
to  relief  or  to  discovery  even.  Therefore,  when  relief 
is  based  upon  the  ground  of  fraud  and  the  defendant 
is  asked  to  discover  certain  facts  within  his  knowledge 
tending  to  establish  such  fraud,  he  must  answer  and 
make  the  discovery  asked,  to  the  end  that  the  com- 
plainant may  have  the  advantage  of  the  answer  as 
evidence  upon  the  hearing  of  the  plea  to  establish  his 
case  by  disproving  the  case  made  by  the  plea. 

We  have  already  called  your  attention  to  the  rule 
that  if  an  answer  covers  any  material  part  of  the  bill 
demurred  or  pleaded  to,  the  demurrer  or  plea  will  be 
overruled.  In  the  case  we  have  supposed  where  the 
bill  is  tiled  to  set  aside  an  award  which,  if  good, 
would  be  a  complete  bar  to  the  complainant's  cause  of 
action,  and  the  defendant  pleads  the  award,  it  would 
seem  at  first  glance  that  if  the  defendant  answered  the 
averments  in  the  bill  showing  that  such  award  was 
void,  that  the  answer  covered  the  same  part  of  the  bill 
as  the  plea.  It  is  not  the  case,  however.  The  bill  in 
such  case  is  filed  for  the  purpose  of  obtaining  discov- 
ery and  relief.  The  plea  is  to  relief  and  not  to  dis- 
covery. The  defendant  relies  upon  the  award  as  a 
complete  bar  to  all  relief.  That  it  is  a  complete  bar  if 
valid  the  bill  in  substance  admits,  for  the  complainant 
asks  to  be  relieved  from  its  effects  by  having  it  set 
aside.     The   defendant,    therefore,    by    pleading   the 


120  EQUITY    PLEADING    AKI>    PRACTICE. 

award  and  denying  the  allegations  of  fraud  puts  in 
issue  the  validity  of  the  award.  Hut  the  fact  that 
there  is  a  valid  award  and  that  therefore  the  complain- 
ant is  not  entitled  to  relief,  is  not  a  denial  that  the 
complainant  is  entitled  to  a  full  discovery  from  the 
defendant  of  all  the  facts  within  his  knowledge  or 
belief,  tending  to  disprove  the  plea.  The  answer 
therefore  which  supports  the  plea  does  not  cover  any 
portion  of  the  bill  covered  by  the  plea. 
/  iSgUjdfil^vjMQg.  Q  >TaA  fU;  Thringjv.  Edgar.  2  S.  &  S.  274- 
277;  J^Xjtg  v.  Edgiuy-gfo  <fr  S  234=281;  Hardman  v.  Ellames, 
5 Sim^64Q£DeDYS  v^Lowck,  3  Myl.  and  C.  205. 

The  answer  is  said  to  support  the  plea,  for  the 
reason  that  the  court  will  intend  all  matters  alleged  in 
the  bill,  to  which  the  complainant  is  entitled  to  re- 
quire an  answer,  to  be  against  the  pleader  unless  they 
are  fully  and  clearly  denied,  and  therefore,  if  in  the 
case  we  have  supposed,  the  defendant  should  plead  the 
award  and  not  full}7  and  clearly  answer  as  to  the  alle- 
gations of  fraud,  the  court  would  assume  that  such  al- 
legations are  susceptible  of  proof,  and  on  that  ground 
would  overrule  the  plea.  If  there  is  a  proper  answer 
in  support  of  the  plea,  such  answer  is  no  part  of  the 
defence,  but  onljr  what  the  complainant  is  entitled  to 
have  to  enable  him  to  avoid  the  defence  made  by  the 
plea  and  establish  the  case  made  by  the  bill,  and  the 
complainant  is  entitled  to  read  the  answer  on  the 
hearing  of  the  plea. 

Ajlildyard  v.  Cressy,  3  Atk.  303;  Horur_Tr  TJnn-y,  1  8,^S.  568.  580; 
]  Gordon  v.  Shaw,  14  Sim.  393;1RochvLMorgell.  2  Sen,  and  Lef^ 
I?1- 


EQUITY    PLEADING    ANH    PRACTICE.  1 'J  1 

Whenever  notice  or  fraud  is  alleged  in  the  bill  the 

plea  must  by  positive  averments  negative    the  notice 

or  fraud  averred,  and  Buch  notice  or  fraud  must  also  be 

negatived  by  the  answer  which  supports  the  plea. 

^     Meadows  v.   The  Duchess  of  Kingston,  Arab.  756;  Devie  v. 

J  Chester,  1  Cox  224;  Hoarev.  Parker,  1  Bro.  C.  C.  578;  Bicknell 

J  v.,Hojlgh^ :)  AU^Jiris, 

DIFFERENT    GROUNDS    OF    PLEA. 

Pleas  to  relief  are: 

1.  To  the  jurisdiction. 

2.  To  the  person  of  the  complainant  or  defendant. 

3.  In  bar  of  the  suit. 

1. 

Pleas  to  the  jurisdiction,  do  not  deny  the  right   of 

of  the  complainant  in  the  subject  of  the  suit  or  assert 

that  there  is  any  disability  on  the  part  of  either  the 

complainant  or  defendant,  but  asserts  that  a   court  of 

chancery  is  not  the  proper  court  to  take  cognizance 

of  the  cause. 

Storv  Eq.  PI.  §706. 

2. 

Pleas  to  the  person,  do  not  dispute  the  jurisdiction 
of  the  court,  or  the  interest  of  the  complainant,  but 
assert  that  the  complainant  is  incapacitated  to  sue,  or 
that  the  defendant  is  not  the  person"  who  ought  to  be 
sued. 

Story  Eq.  PI.  §706. 

3. 
A  plea  in  bar  alleges  some  matter  which    displaces 
the  equity  of  the  bill. 


122  EQUITY    PLEADING    AND    PRACTICE. 

FORM    OF    PLEA. 

A  plea  is  entitled  in  the  cause,  and  like  a  demurrer 
is  introduced  by  a  protestation  against  the  confession 
of  the  truth  of  any  matter  contained  in  the  bill. 

The  extent  of  the  plea,  that   is    whether  it   is  in- 
tended to  cover  the  whole  bill,  and  if  not  the  whole, 
what  portion,  should  be  distinctly  shown, 
k  T.p.!«>rnftj  v.  Dm-prpv,  4  Btuwvto.i-  Summers  v.  Murray,  2  Edw. 
Ch.  205. 

Then  follows  a  clear  and  positive  statement  of  the 
matter  relied  upon  as  an  objection  to  the  suit  accom- 
panied, when  neeessary,  by  such  averments  as  are  nec- 
essary to  its  support.  When  the  objection  is  to  the 
frame  of  the  suit,  it  must  point  out  the  particular  de- 
fect and  how  it  may  be  remedied. 
Merre wether  v.  Mellish,  l3_Ves.  435,  438. 

The  general  requisites  of  a  plea  have  already  been 
given.     They  are : 

1.  It  must  be  founded  on  matter  not  apparent  on 
the  face  of  the  bill. 

2.  It  must  reduce  the  case  to  a  simple  point. 

3.  It  must  be  supported  by  proper  averments. 
After  the  plea  has  been  drawn,  it  is  to  be  signed 

by  counsel   and  sworn  to  by  the  defendant,    that  it 
is  true  in  point  of  fact. 

By  the  rules  of  the  United  States  courts  it  is  pro- 
vided that  no  plea  shall  be  filed  unless  it  is  accom- 
panied by  a  certificate  of  counsel  that  it  is,  in  his 
opinion,  well  founded  in  point  of  law,  and  by  the 
affidavit  of  the  defendant  that  it    is    not   interposed 


EQUITY    PLEADING    AND    PRACTICE.  123 

merely  for  the  purpose  of  causing  delay  in  the  pro- 
gress of  the  suit. 

U.  S.  Rule  81. 

When  the  plea  is  filed  the  complainant  must  cither 
set  the  cause  down  for  hearing  on  the  plea,  or  file  a 
replication  to  the  plea.  If  the  plea  is  set  down  for 
hearing  the  truth  of  all  the  averments  in  the  plea 
well  pleaded  is  admitted,  and  the  only  question  for 
the  court  to  pass  upon  is  the  sufficiency  of  the  plea. 

If  a  replication  is  filed  to  the  plea,  the  complainant 
thereby  admits  the  sufficiency  of  the  plea  in  law,  and 
the  only  question  in  issue  is  the  truth  of  the  matter 
pleaded. 

•  It  becomes  very  important  therefore,  for  the  corn 
plainant  to  determine  in  the  first  instance,  whether 
the  plea  is  good  in  form,  because,  if  it  should  be  bad 
in  form,  but  the  matters  pleaded  true  in  fact,  and  he 
should  take  issue  upon  the  plea,  by  filing  a  replication 
the  plea  would  be  sustained,  notwithstanding  it  was 
bad  in  form  and  the  matters  pleaded  were  no  bar  to 
complainant's  bill,  because,  by  filing  the  replication,  the 
complainant  admits  that  the  matter  as  pleaded  is  a 
bar  if  true,  and  he  denies  merely  the  truth  of  the 
matters  pleaded. 

Bogardus  v.  Trinity  Church,  4  Paige  178;  Harris  v.  Ingledew , 

If  the  plea  is  set  down  for  hearing  and  the  court 
holds  that  it  is  good  in  form,  the  complainant  may  then 
take  issue  upon  it  by  filing  a  replication.  After  a 
replication  is  filed  proofs  are  taken  as  to  the  truth  of 


12  i  KQUITY    PLEADING    AND    PRACTICE. 

the  plea  and  then  a  hearing  is  had  upon  that  issue. 
The  sufficiency  of  the  plea  is  no  longer  in  issue,  the  court 
is  simply  called  upon  to  determine  whether  or  not  the 
defendant  has  by  his  proofs  maintained  the  truth  of 
his  plea. 

McEwen  v.  Broadhead,  3  Stockt.  (N.  J.)  129-131. 

If  the  plea  is  allowed,  it  is  thereby  determined  to  be 
a  full  bar  to  so  much  of  the  bill  as  it  covers.  If  the 
defect  in  the  bill  can  be  cured  by  ah  amendment,  it  is 
usual  for  the  court  to  permit  the  complainant  to 
amend  his  bill.  If  the  defect  cannot  be  cured,  then, 
of  course,  the  controversy  is  at  an  end  as  to  that  much 
of  the  matter  covered  by  the  plea. 

Story  Eq.  PI.  §  697. 

If  the  court  should  consider  that  although  the  plea 
may  be  good  and  the  facts  pleaded  true  from  the  proofs 
then  before  the  court  but  that  there  may  be  matter 
disclosed  in  evidence  which  would  avoid  it,  in  order 
that  the  complainant  may  not  be  deprived  of  his 
rights,  it  will  direct  that  the  benefit  of  the  plea  shall 
be  reserved  to  the  defendant  at  the  hearing. 

Lord  Redesdale,  245. 


EQUITY    PLEADING    AND    PRACTICE.  125 


LECTURE   IX. 


OVERRULING    PLEAS. 

When  a  plea  has  been  set  down  for  argument  and 
on  the  argument  the  court  is  satisfied  that  the  plea 
cannot  under  any  circumstances  be  made  use  of  as  a 
defence,  it  will  be  overruled.  And  if  it  is  a  frivolous 
plea  the  complainant  may,  if  he  desires,  have  an  order 
to. take  the  bill  as  confessed. 

If  the  plea  is  not  frivolous,  the  effect  of  overruling 
the  plea  is  to  impose  upon  the  defendant  the  necessity 
of  making  a  new  defence.  This  he  may  do,  by  a  new 
plea  or  by  an  answer. 

Chadwick  v.  Broadwood.  3  Beav.  308,  316. 

This  rule  giving  the  defendant  a  right  to  plead  de 
novo  does  not  permit  him  to  rest  his  second  plea  upon 
the  same  ground  as  the  first.  And  when  a  plea  has 
been  overruled  upon  the  merits,  the  same  matter  can- 
not be  set  up  in  the  answer  as  a  defence  without  per- 
mission of  the  court. 

TWnshP-ad  v    Tnwimhpnri    9,  p*i<rf,  ij^J  Piatt  V.  Oliver.    1  Mq- 

^eau-aaa;  (Ringgold  v.  Stone,  20  Ark.  52«y 

And  if  the  defendant  desires  to  plead  de  novo  he 
should  obtain  leave  of  the  court;  for  a  defendant  may 
not  interpose  more  than  one  plea  without  special  leave 
of  the  court. 

McEwan  v.  Sanderson,  L.   R.  16  Eq.  31(i. 


126  EQUITY    PLEADING    AND    PRACTICE. 

The  effect  of  allowing  or  overruling  a  plea  upon 
the  argument,  and  the  effect  of  finding  a  plea  true  or 
false  upon  the  hearing,  are  widely  different  in  their 
effects  upon  the  rights  of  both  the  complainant  and 
defendant. 

If  the  plea  is  allowed  upon  the  argument,  the  effect 
is  to  hold  that  the  plea  is  good  in  law,  assuming  that 
it  is  true  in  fact,  and  the  complainant  is  stilj  at  liberty 
to  take  issue  upon  the  facts  pleaded. 

If  the  plea  is  overruled  upon  the  argument,  the 
defendant  may  put  in  a  new  defence,  as  we  have  just 
seen. 

On  the  other  hand,  the  decision  of  the  court  upon  the 
hearing  of  the  plea  is  decisive  and  final  as  to  so  much 
of  the  bill  as  is  covered  by  the  plea.  If  the  plea  is 
found  true,  the  bill  is  dismissed,  and  if  found  false, 
the  complainant  is  entitled  to  a  decree  ;  for  the  reason 
that  when  issue  is  taken  upon  the  plea,  after  argument 
and  allowance,  its  validity  as  a  complete  bar  to  the 
complainant's  suit  has  been  found  by  the  court,  and 
nothing  further  remains,  except  to  ascertain  whether 
or  not  the  facts  upon  which  its  validity  depends  are 
true.  If  the  truth  is  established,  then  the  plea  is 
found  to  be  both  true  in  fact  as  well  as  good  in  law. 

But  if  the  complainant  takes  issue  upon  the  plea  by 
filing  a  replication  before  argument,  and,  consequently 
before  the  court  has  passed  upon  its  sufficiency,  by  so 
doing  he  admits  that  the  plea,  if  true  in  fact,  is  a  bar 
to  his  suit,  and  this  admission  is  conclusive  so  far  as 
the  sufficiency  of  the  plea  is  concerned,  it  being  pre 


KylllTY    PLEADING     AND    PJBAOTIOE.  127 

cisely  the  same  in  effect  as  the  allowance  of  the  plea 
by  the  court.  After  the  replication  is  filed,  the  only 
question  in  issue,  as  to  so  much  of  the  bill  as  is  covered 
by  the  plea,  is  the  truth  of  the  plea.  The  complain- 
ant says  by  his  pleadings,  in  effect,  if  what  the 
defendant  has  alleged  in  his  plea  is  true,  I  am  not 
entitled  to  my  relief.  While  the  defendant  has,  by 
his  pleadings,  admitted  that  all  the  allegations  made 
in  the  complainant's  bill  are  true,  except  so  far  as  they 
are  denied  by  the  plea,  and  that  his  sole  and  only 
defence  to  the  complainant's  suit  are  the  matters 
which  he  has  pleaded,  and  if  those  matters  are  not 
established,  that  he  has  no  further  or  other  defence, 
and  that  the  complainant  is  entitled  to  a  decree. 

Story  Eq.  PI.  §  697;  U.  S.  Rule  33;  Hughes  v.  Blake,  6  Wheat. 
453. 

It  follows  that  where  the  complainant  files  a  repli- 
cation to  a  plea,  which  is  true  in  fact,  but  insufficient 
in  law,  that  the  bill  must  be  dismissed  upon  the  hear- 
ing, because  upon  the  hearing  the  court  will  not 
examine  into  the  sufficiency  of  the  plea,  because  under 
the  pleadings  it  is  admitted  to  be  good  in  law. 

Harris  v.  Ingledew,  3  P.  Wilis.  91,  94,  95;  Bogardus  v.  Trinity 
Church,  4  Paige  178. 

On  the  other  hand,  if  the  defendant  has  a  complete 
defence  to  the  complainant's  suit,  but  rests  his  defence 
upon  a  plea  of  some  matter  which  he  cannot  establish, 
he  loses  all  the  benefit  of  his  defence  upon  the  merits, 
and  cannot  prevent  the  complainant  from  obtaining  a 
decree. 

Hughes  v.  Blake,  6  Wheat.  453. 


128  EQUITY    PLEADING    AND    PRACTICE. 

If  the  complainant,  on  the  face  of  the  bill,  is  en- 
titled to  a  final  decree,  he  may  have  such  decree  upon 
the  plea  being  found  false  upon  the  hearing.  If, 
however,  he  is  not  entitled  to  final  and  complete  relief 
upon  the  case  made,  he  is  entitled  to  an  order  that  the 
bill  be  taken  as  confessed,  and  for  a  reference  to  a 
master  to  take  proofs.  He  may  also,  if  necessary, 
examine  the  defendant  upon  interrogatories  as  to  all 
matters  which,  by  an  answer,  the  defendant  should 
have  discovered. 

Dows  v.  McMichael,  2  Paige  345;  Brownswood  v.  Edwards,  2 
Ves.  Sen.  243.  247. 

THE    ANSWER. 

From  what  has  been  said,  you  have  learned  that 
little  or  no  .advantage,  except  delay,  is  gained  by  a 
demurrer  or  plea,  unless  the  cause  for  demurrer  or  the 
special  defence  made  by  the  plea  cannot  be  overcome 
or  met  by  an  amendment  to  the  bill.  Whenever  the 
complainant  can  cure  the  defect  pointed  out  by  these 
dilatory  defences  through  an  amendment,  the  attack 
has  had  no  other  effect  save  that  of  strengthening  and 
fortifying  the  complainant's  position.  When,  how- 
ever, the  defect  cannot  be  cured  by  amendment,  these 
defences  should  be  resorted  to,  as  they  shorten  the  liti- 
gation and  save  expense.  And  in  case  of  want  of 
parties,  or  a  misjoinder  of  parties,  or  multifariousness, 
the  benefit  of  a  defence  on  that  ground  is  frequently 
lost  when  not  taken  by  demurrer  or  plea.  (Turner  v. 
Hart,  71  Mich.  [July  11,   1888].)     But  since  nearly 


HXJIHTY    PLEADING    KtiU    PRACTICE.  129 

every  defence  that  can  be  made  by  demurrer  or  plea 
ean  be  taken  advantage  of  equally  well  by  an  answer, 
they  are  usually  set  up  in  the  answer.  This  practice 
inure  largely  prevails  at  present  than  formerly,  because 
since  parties  can  now  be  witnesses,  avoiding  discovery 
called  for  by  the  bill  is  now  of  little  consequence, 
while  formerly  it  was  of    the  utmost  importance. 

When  the  bill  does  not  waive  an  answer  on  oath, 
the  answer  properly  consists  of  two  parts : 

1.   A.  statement  of  the  defence. 

•2.    Answers  to  the  complainant's  interrogatories. 

It  is  not  necessary  that  the  answer  should  be  divided 
into  two  separate  and  distinct  parts,  the  one  being 
devoted  exclusively  to  setting  forth  the  defendant's 
defence  and  the  other  to  answering  the  complainant's 
interrogatories.  The  two  may  be  interlaced,  but 
the  pleader  in  drawing  the  answer,  should  keep  its 
twofold  character  in  mind,  and  it  should  be  so  drawn 
as  to  set  out  clearly,  distinctly  and  fully,  all  the  separ- 
ate grounds  of  the  defence,  and  it  should  at  the  same 
time,  answer  fully  and  explicitly,  all  matters  in  regard 
to  which  the  complaiuant  asks  and  is  entitled  to  dis- 
covery. 

Youle  v.  Richards,  Sexton  (N.  J.)  534;   Warren  v.  Warren,  80 
Vt.  530. 

It  is  a  general  rule  that  the  complainant  cannot  rely 
upon  any  ground  for  relief  except  those  contained  in 
the  bill,  and  that  the  defendant  cannot  rely  upon  any 
ground  of  defence  except  that  set  up  in  his  answer, 
and  that  all  testimony  introduced  for  the  purpose  of 


130  EQUITY    PLEADING    AND    PRACTICE. 

establish iug  some  matter  not  claimed  in  the  bill  as 
ground  for  relief  or  in  the  answer  as  ground  of  de- 
fence, is  immaterial  and  irrevalent  and  will  not  be 
•considered  by  the  court. 

Moors  v.  Moors,  17  N.  H.  481;  Buckley  v.  Sutton,  38  Mich.  1; 
Harrington  v.  Brown,  56  Mich.  301. 

The  defendant  may  set  up  in  his  answer  any  num- 
ber of  defences  that  are  consistent  with  each  other,  or 
rather  that  are  not  inconsistent.  But  the  defendant 
may  not  setup  two  or  more  grounds  of  defence  which 
are  inconsistent  with  each  other,  and  the  error  will  not 
be  cured  in  such  a  case  by  stating  the  inconsistent 
grounds  of  defence  in  the  alternative. 

Hopper  v.  Hopper,  11  Paige.  46;  Jesus  College  v.  Gibbs,  1  Y. 
.&  0.  Ex.  145,  160. 

Not  the  same  degree  of  certainty  is  required  in  an 
answer  as  in  a  bill.  There  must  be  such  a  degree  of 
certainty,  however,  as  is  sufficient  to  inform  the  com- 
plainant of  the  nature  of  the  defendant's  case. 

Cummings  v.  Coleman,  7  Rich.  Eq.  (S.  C.)  509. 

The  same  strictness  is  not  requisite  in  an  answer  as 
in  a  plea,  where  the  statute  of  limitations  is  set  up  as 
a  defence.  This  defence  if  relied  upon,  must  how- 
ever be  distinctly  made,  either  by  answer  or  plea, 
although  the  defence  that  the  claim  is  stale  may  be 
made  without  any  averment  to  that  effect  having 
been  made  in  the  answer. 

Maury  v.  Mason,  8  Porter  (Ala.)  211;  Sullivan  v.  Portland, 
94  U.  S.  806. 

When  matters  of  defence  are  set  up  in  the  answer, 


EQUITY     PLEADING     AND    PRACTICE.  131 

which  might  have  been  taken  advantage  of  by  de- 
murrer or  plea,  and  the  defendant,  as  to  those  matters, 
claims  the  same  benefit  in  his  answer  as  though  he 
had  demurred  or  pleaded,  it  is  only  at  the  hearing  of 
the  cause  that  any  such  benefit  can  be  insisted  upon. 

Wray ^.  Hutchinson,  2  M.  &  K.  235;  Mulloy  v.  Paul.  2  Tenn. 
Cb^l55/Hume  v.  Com']  Bk.,  1  Lea,  229;  Zabel  v.  Harsh  man,  68 
Mich.  (Jan.  12,  1888.) 


132  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  X. 


FORM    OF    THE    ANSWER. 

The  answer  must  be  entitled  in  the  cause  and  agree 
with  the  bill  as  to  the  parties  named  therein.  It'  a 
mistake  as  to  the  name  of  a  defendant  has  been  made 
in  the  bill,  such  mistake  cannot  be  corrected  in  the 
title,  but  if  the  defendant  has  been  misnamed  in  the 
bill,  he  may  make  the  correction  in  the  body  of  his 
answer;  thus  for  instance  :  u  The  answer  of  Robert 
Sharp  (in  the  bill  bv  mistake  called  Roland  Sharp), n 
etc. 

'/Attorney  General  v.  Worcester,  1  CoophJT^  CotL  JSjff 

If  there  is  such  a  defect  in  the  heading  of  the  answer, 

that  it  does  not  appear  distinctly  whose  answer  it  is, 

or  in  what  case  it  is  filed,  it  will  be  taken  off  the  tile 

for  irregularity. 

;t  PritU3_v.  Thompson,  _G.  Qaop.  249 f? Griffiths  v.  Wood^  1  l^Vea. 
62;_Pry_v.  Mantell,  4_Beav._485 ;  Upton  v.  SowTou^lS  Sim~40* 

If,  however,  it  is  evident,  what  bill  is  answered,  it 
will  not  be  stricken  from  the  files  although  certain 
prescribed  words  have  been  omitted. 

Bowes  v.  Farrar,  L.  R.  14  Eq.  71. 

Two  or  more  persons  may  join  in  the  same  answer, 
and  when  they  appear  by  the  same  solicitor,  and  have 
the  same  defence,  they  ought  to  join,  and  the  court 
will  not,  in  case  they  should  succeed  in  the  suit,  allow 
them  any  more  costs  in  ease  they  file  separate  answers 


KQUITY    PLEADING    AND    PRACTICE.  183 

than  would  have  been  allowed,  if  they  had  filed  a 
joint  answer. 

Story  Eq.  PI.  §  869;^Woods  v.  WoocK  -r>  Warp  »aQ,  9:¥H> 
The  answer  should  be  divided  into  paragraphs  num- 
bered consecutively  and  each  paragraph  should  contain 
a  full  and  distinct  statement  of  some  allegation.  Docu- 
ments not  on  file  in  the  case  cannot  be  referred  to  and 
made  a  part  of  the  answer,  but  may  when  so  filed. 

Wells  v.  Stratton,  1  Tenn.  Ch.  328;  Attorney-General  v.  Ed- 
munds, 15  W.  R.  138;  U.  S.  C.  C.  Rule  4. 

When  two  defendants  answer  jointly  and  one 
speaks  positively  for  himself,  the  other  may  say  that 
he  has  perused  the  answer,  believes  it  to  be  true  and 
that  he  makes  it  a  part  of  his  answer.  This  he  may 
not  do,  however,  if  they  answer  separately. 

Binney's  Case,  2  Bland.  99;  Warfield  v.  Banks,  11  Gill  &  J. 
98;  Carr  v.  Weld,  3  C.  E.  Green  (N.  J.)  41. 

The  answer  must  be  signed  by  the  defendant  or 
defendants  putting  it  in,  unless  leave  has  been  ob- 
tained to  file  an  answer  not  signed,  because  originally 
the  answer  was  always  under  oath  and  was  testimony 
in  the  cause.  j 

oDennison  v.  Bassford.  7  Paig^LiilQi  Cook  v.  Dews,  2  Tenn. 
Ch.  496;  Kimball  v.  Ward,  Walk.  Cb.  439;  Supervisors  &c.  v. 
Miss.  &c.  R.  R.  21  111.  337. 

The  answer  must  also  be  signed  by  counsel.  When 
such  counsel  are  a  firm,  the  firm  signature  may  be 
used. 

Bisbop  v.  Willis.  5  Beav.  83  n;  Hampton  v.  Coddington,  1 
8tew.  Eq.  557;  Henry  v.  Gregory,  29  Micb.  68;  Eveland  v. 
Stephenson.  45  Mjfh  Ml-  Dwight  v.  Humphreys,  3  McLean 
104:  U.  S.  Cb.  Rule  24. 


134  EQUITY    PLEADING    AND    PKACTICE. 

The  copy  of  the  answer  served  on  the  defendant  is 
presumed  to  be  a  correct  copy  of  the  answer  filed,  and 
if  the  signature  of  counsel  is  omitted  from  the  copy 
served,  the  complainant  may  move  to  take  the  answer 
off  the  files  for  irregularity. 

Littlejohn  v.  Munn,  3  Paige  280. 

The  signing  of  the  answer  by  the  defendant  may  be 
waived  by  the  complainant,  and  if  an  unsigned 
answer  is  put  in  and  the  complainant  files  a  replication, 
that  step  on  his  part  will  be  held  to  be  such  a  waiver. 
Fulton  Bank  v.  Beach,  2  Paige  307;  Collard  v.  Smith,  2  Beas- 
ley,  (N.  J.)  43,  45. 

The  court,  under  special  circumstances  will  permit 
the  defendant  to  file  an  answer  not  signed  by  him  as 
when  he  resides  at  a  distance,  or  has  gone  abroad 
before  an  answer  could  be  prepared  or  the  like. 

Dumond  v.  Magee,  2  Johns.  Ch.  240;  Harding  v.  Harding,  12 
Ves.  159. 

Unless  answer  under  oath  is  expressly  waived  in  the 
bill  the  answer  must  be  sworn  to  before  the  proper 
officer.  Who  is  such  proper  officer  depends  upon  the 
provisions  of  the  local  statute  and  the  rules  of  the 
court. 

Sitlington  v.  Brown,  7  Leigh  (Va.)  271. 

The  answer  of  a  corporation  is  put  in  under  the 
corporate  seal  and  not  under  oath.  If  it  is  put  in  not 
under  seal  it  will  be  taken  from  the  files  as  irregular. 

Ransom  v  Stonington,  Sav.  Bk.  2  Beasley,  (13  N.  J.  Eq.)  212; 
Mill  Dam  Foundry  v.  Hovey,  21  Pick.  417;  Brumly  v.  Westches- 
ter Mnfg  Co.,  1  Johns.  Ch.  365;  Beecher  v.  Anderson.  45  Mich. 
543. 

But  unless  the  answer  of  the  corporation  is  sworn  to 


KQUITY    I'LTCADlNf}    AND    PRACTICE.  L35 

it  cannot  bo  made  the  basis  of  a  motion  to  dissolve  a 
temporary  injunction  ;  since  an  injunction  will  not  be 
dissolved  upon  the  filing  of  an  answer  not  on  oath 
denying  the  equities  of  the  bill. 

Fulton  Bk.  v.  New  York,  etc.,  1  Paige,  811;  Griffin  v.  State 
Bk.,  17  Ala.  25S. 

When  the  complainant  desires  to  obtain  from  a  cor- 
poration the  answer  of  some  officer  of  the  corporation 
under  oath,  such  officer  must  be  named  and  made  one 
of  the  defendants  in  the  bill. 

Buford  v.  Rucker,  4  J.  J.  Marsh,  551;  Vermilyca  v.  Fulton 
Bk.,  1  Paige  37;  Beecher  v.  Anderson,  45  Mich.  543. 

When  the  complainant  waives  an  answer  on  oath, 
the  answer  is  treated  as  a  mere  pleading  and  is  not 
evidence  for  the  defendant,  but  the  plaintiff  may  take 
advantage  of  any  admissions  made  in  it. 

Bartlett  v.  Gale,  4  Paige,  004;  Wilson  v.  Towle,  36  N.  H.  129; 
Durfee  v.  M.CIurg,  <>  Mich.  223;  Union  Bk.,  etc.  v.  Geary,  5 
Pet.  99,  110,  113. 

When  the  bill  waives  an  answer  under  oath  the 
defendant  cannot  make  his  answer  evidence  by  put- 
ting it  in  under  oath.  Under  such  circumstances  the 
sworn  answer  will  be  considered  as  one  not  under  oath. 

Hyer  v.  Little,  5  C.  E.  Green  443;  Syuies  v.  Strong,  1  Stew. 
Eq.  131. 

As  we  have  stated,  an  -unsworn  answer  cannot  be 
made  the  foundation  of  a  motion  to  dissolve  an  injunc- 
tion ;  therefore,  if  an  injunction  bill  waives  an  answer 
under  oath,  the  defendant  may  still  put  in  an  answer 
under  oath  and  so  treat  it,  for  the  purpose  of. moving 
to  dissolve  the  injunction  grante  I  on  the  bill. 

Dougrey  v.  Topping,  4  Paige  9 4 ;  Mahony  v.  Lazier,  16  Md.  69; 
Rainey  v.  Rainey,  35  Ala.  2^2. 


13(5  EQUITY    PLEADING    AND    PRACTICE. 

When  the  answer  is  signed,  drawn,  and  if  necessary 
sworn  to,  it  must  be  filed  and  a  copy  served  upon  the 
complainant  within  the  time  prescribed  by  the  rules. 

U.  S.  Rule  18;  Mich.  Rule  11. 

If  an  answer  on  oath  has  been  waived  in  the  bill  the 
complainant  cannot  except  to  the  bill  filed  as  not  hav- 
ing fully  answered  the  allegations  contained  in  the 
bill.  In  such  a  case  the  answer  is  a  mere  pleading, 
but  lie  may  still  except  to  the  answer  for  impertinence 
or  scandal,  if  it  is  padded  with  irrelative  matter,  or 
tainted  with  unnecessary  comments  affecting  the 
moral  character  of  any  one.  If  an  answer  on  oath  has 
not  been  waived  and  it  does  not  contain  a  full  disclos- 
ure of  ail  the  matters  in  regard  to  which  the  defend- 
ant has  been  interrogated,  it  may  be  excepted  to  for 
insufficiency.  The  steps  necessary  for  the  complain- 
ant to  take  in  excepting  to  the  answer  either  for 
insufficiency,  impertinence  or  scandal,  are  prescribed 
by  the  rules. 

D.  S.  Rules  2(i.  27;  Mich.  Rules  27,  28;  Brooks  v.  Byam,  1 
Story  296;  Stafford  v.  Brown,  4  Paige  88. 

The  exceptions  are  entitled  in  the  cause  and  they 
must  point  out  positively  and  distinctly  the  matters  in 
the  answer  which  are  objected  to  as  impertinent  or 
scandalous,  or  those  parts  of  the  bill  which  have  not 
been  fully  answered.  They  pray  that  the  scandalous 
and  impertinent  matter  may  be  expunged,  or  that  the 
defendant  may  put  in  a  full  answer.  They  are  signed 
by  counsel,  filed,  and  a  copy  served  upon  the  opposing 
solicitor.  The  defendant  may  submit  to  make  a 
further  answer  or  to  have  the  matter,  objected  to  as 
impertinent  or  scandalous,   expunged,  rf  he  does  not, 


KQOITY    PLEADING    AND    PEACTIOB.  137 

the  answer  is  referred  to  the  proper  officer  to  examine 
and  report  whether  the  exceptions  are  well  taken. 

Brooks  v.  Byam,  1  Story  29(5;  Stafford  v.  Brown,  4  Paige  88; 
Evans  v.  Owen,  2  M.  &  K.  382;  Craven  v.  Wright,  2  Peere  Wms. 
182. 

AMENDING    ANSWERS. 

When  an  answer  has  been  put  in  upon  oath,  the 
court  will  not  permit  it  to  be  amended  in  matters  of 
substance,  except  under  very  exceptional  and  special 
circumstances.  Where  the  proposed  amendment  is  to 
the  form  of  the  answer  merely,  or  to  correct  some 
mistake  of  date,  or  a  verbal  inaccuracy,  the  court  will 
not  hesitate  to  grant  leave  to  amend. 

Campion  v.  Kille.  1  McCarter  (N.  J.)  229,  232;  McKim.  v. 
Thompson,  1  Bland  162;  Bowen  v.  Cross,  4  Johns.  Ch.  375: 
Dearth  v.  Hide  and  Leather  Natl.  Bk.,  100  Mass.  540;  Web- 
ster Loom  Co.  v.  Higgins  13  Blatchf.  349;JiGain8l 
^ifford     2  P     Wms    A^U  til 

The  court  will  also  allow  the  defendant  to  amend 
his  answer,  where  new  matter  has  been  discovered 
since  the  answer  was  put  in. 

Tillinghast  v.   Champlin.  4  R.  I.  128. 

Or  to  correct  a  mistake,  when  owing  to  such  mis- 
take, an  admission  has  been  made  to  the  prejudice  of 
the  defendant. 

Hughes  v.  Bloomer,  9  P;iige  269. 

The  court  will  not,  however,  permit  amendments  of 
this  nature  to  be  made  merely  on  the  ground  that  the 
defendant,  when  he  made  the  admissions,  was  labor- 
ing under  a  mistake  of  law,  and  when  no  mistake  of 
fact  has  been  made.  ,v 

Pf.Kowlips  v.   Powell,  1  P.    Wms.  '29S;jPeurce  v.  Grove,  Amb. 
^SfT'earce  y.   Grove.  3  Alk.   522. 


138  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  XI. 


SUPPLEMENTAL    ANSWERS. 

It  is  the  usual  practice,  at  the  present  time,  to  file  a 

supplemental  answer  instead  of  amending  the  original, 

answer.     Application    must  be  made  to  the  court  for 

leave  to  file  such  supplemental  answer,  and   the  same 

rules  govern  such    applications   as  those  for  leave  to 

amend. 

P  Raincock  v.  Young,  16  Sim.  122^/Arnand.  v.  Grigg,  3  Stew. 
Eq.  1;  Smith,  v.  Smith,  4  Paige  92. 

In    making  an  application    to    file  a  supplemental 

answer,  the  defendant  must  show  that  justice  requires 

that  he  should  be  permitted  to  make  the  correction  in' 

his   answer   or    the    additional    defence.       And    the 

motion  for  leave  to  file  the  supplemental  answer  must 

be  accompanied  by  an  affidavit  setting  forth  the  facts 

upon  which  the  motion  is  founded. 

Thomas  v.  Doub,  1  Md.  252;  McKim  v.  Thompson,  1  Bland 
lBO/Wella-J>^-Weod^JLflLyes.  401. 

When  a  defendant  has  obtained  leave  to  file  a  sup- 
plemental answer,  he  must  confine  such  answer 
strictly  to  the  matters  set  forth  in  his  application  and 
which  he  has  received  the  leave  of  the  court  to 
embody  in  such  answer.  If  he  goes  beyond  that,  his 
supplemental  answer  will  bo  taken  off  the  files. 

Strange  v.  Collins,  2  V.  &  B4__lG:j1_JJi7J/  ^ 

There    is    no    particular     time     within    which    the, 


KQUITY    PLEADING     AND    PKA.CTICB.  139 

defendant  must  make  an  application  to  file  a  supple- 
mental answer,  provided  lie  make  it  as  soon  as  the 
error  or  omission  in.  his  answer,  or  the  newly  dis- 
covered evidence,  has  come  to  his  knowledge.  He 
must  not  be  guilty  of  inexcusable  laches  and  further- 
more, it  must  be  possible  to  place  the  complainant  in 
the  same  position  that  he  would  have  been  in,  had  the 
correction  or  new  matter  been  stated  in  the  original 
answer. 

Martin  v.  Atkinson,  5  Ga.  390;  Wilson  v.  Wintermute,  12  C. 
E.  Green  (N.  J.)  63;  Ruggles  v.  EdcJx^LBhll^    524;  Fulton 


v.  Gilman,  8  Beav.  154,  158;  Furnani   v.  Edwards,  3    Ti-nn.  Ch. 
365;  Smallwood  v.  Lewin,  2  Beasley  (N.  J.)  123. 

TAKING    ANSWERS    OFF    THE    FILE, 

As  we  have  seen  an  answer  may  be  taken  off  the  file 
if  any  irregularity  has  occurred  in  its  frame  or  form. 
But  the  plaintiff  must  apply  to  have  tiie  answer  taken 
off  the  tile  before  he  excepts  to  it,  otherwise  he  will 
have  waived  the  irregularity.  It  is  a  general  rule  in 
pleading  that  a  positive  step  on  the  basis  of  some  prior 
pleading  is  a  waive  of  any  irregularity  in  such  plead- 
ing. 

Steele  v.  Plomer,  2  Phil.  780  pulton  Bank  v.  Beach.- 2  Paige. 
JO?;  S.  C,  6  Wend.  36;  Seifried  v.  People's  Bank,  1  Baxt.  200. 

Not  only  may  an  answer  be  taken   off  the  tilt 
an  irregularity  in  its  form,  but.  if  on  its    face  it  is  evi- 
dently evasive  the  complainant  may,  before  he  excepts 
to  it  for  insufficiency  move  to  have  it  taken  off  the 
files. 

Qlaesington  v.  Thwaites,  2  Russ.  458,  462;  Seaton  v.  Grant,  L. 
R.  2  Ch.  App.  459. 


140  (EQIIippCspLBADING    AND    PRACTICE. 

The  court  will  also,  sometimes,  in  case  the  plead- 
ings, affidavits  or  other  documents  contain  matter 
which  on  account  of  its  character  is  desirable  should 
not  remain  of  record,  although  not  scandalous  because 
pertinent,  permit  them  to  be  taken  off  the  file  upon 
the  consent  of  all  the  parties  to  the  suit. 

Clifton  v.  Bental,  9  Beav.  105;  Walton  v.  Broadbent,  3  Hare 
334;  Seaton  v.  Grant,  L.  R.  2  Ch.  App.  459. 

JOINDER    OF    SEVERAL   DEFENCES. 

All  or  any  two  of  the  several  modes  of  defence  may 
be  joined.  A  defendant  may  demur  to  part  of  the 
bill,  plead  to  another  part,  answer  to  a  third  part  and 
disclaim  as  to  a  fourth  part.  Each  separate  defence, 
however,  must  relate  to  a  separate  and  distinct  part  of 
the  bill. 

Clark  v.  Phelps,  t>  Johns.  Ch.  214;  Livingston  v.  Story,  9  Pet. 
632, 

A  defendant  as  we  have  seen  cannot  plead  to  that 
part  of  the  bill  to  which  he  has  demurred,  nor  answer 
any  part  to  which  he  has  demurred  or  pleaded,  nor  by 
answer  claim  what  by  disclaimer  he  has  declared  he 
has  no  right  to  ;  because  a  plea,  or  answer, will  overrule 
a  demurrer,  and  an  answer  a  plea,  the  one  defence  being 
inconsistent  with  -the  other  and  the  court  preferring 
that  which  rests  nearest  upon  the  merits. 

Bolton  v.  Gardner,  3  Paige  273;  Spofford  v.  Manning,  6  Paige 
383. 

When  a  demurrer  is  to  a  part  of  the  bill,  and  there 

is  an  answer  or  other  defence  to  the  remainder  of  the 

bill,  it  should  be  entitled  :     "  The  demurrer  of  A.  B. 


EQUITY    PLEADING    AND    PRACTICE.  141 

the  above  named  defendant,  to  a  part  of  the  bill  of 
complaint  of  the  above  named  complainant,  and  the 
answer  of  said  A.  13.  to  the  remainder  of  said  bill.*' 
When  there  is  a  plea  to  a  part  of  the  bill  accompanied  by 
an  answer  to  the  remainder,  the  plea  and  answer  should 
be  entitled  as  above,  except  plea  is  inserted  in  place  of 
demurrer. 

Tomlinson  v.  Swinnertou,  1  Keen.  9, 13. 

When  the  answer,  however,  is  in  support  of  the 
plea,  the  title  is  "  Plea  and  answer." 

These  captions  are  not  mere  matters  of  form.  If 
the  answer  by  its  commencement  is  apparently  an 
answer  to  the  whole  bill,  it  will  overrule  aV  plea  or 
demurrer  to  a  part  of  the  bill,  although  it  does  not 
answer  that  part  covered  by  the  demurrer  or  plea. 
f)  Leaycraf t  v.  Dempsev.  4  Paige   124:    Summers   v.   Murry,   8 

If  the  answer  contains  a  full  and  complete  disclos- 
ure and  there  is  no  impertinent  or  scandalous  matter  in 
it  to  which  the  complainant  desires  to  except,  he  must 
determine  whether  he  will  go  to  a  hearing  upon  the 
bill  and  answer.  If,  assuming  that  all  the  mate- 
rial averments  of  fact  contained  in  the  answer  are 
true,  the  case  made  by  the  bill  has  been  admitted,  he 
may  notice  the  cause  for  hearing.  In  this  case  no  al- 
legation made  in  the  bill,  although  put  in  under  oath, 
will  be  considered  as  evidence  in  the  cause,  and  all  the 
material  averments  contained  in  the  answer,  although 
not  put  in  under  oath,  are  held  to  be  true.  In  short, 
the  complainant  must  rely  wholly  upon  those  allega- 


142  EQUITY     PLEADING     AND    PRACTICE. 

tions  in  the  bill  which  the  defendant  by  his  answer 
has  admitted,  and  those  admissions  are  to  be  taken 
with  all  the  reservations  and  explanations  contained  in 
the  answer.  The  allegations  in  the  bill,  admitted  by 
the  answer,  must  be  sufficient,  after  being  emasculated 
by  the  explanatory  matter  contained  in  the  answer,  to 
entitle  the  complainant  to  the  relief  prayed  for,  or  he 
will  fail  in  his  suit.  The  case  must  be  clear  and 
strong,  therefore,  which  will  justify  the  complainant 
ingoing  to  a  hearing  on  the  bill  and  answer. 

Contee  v.  Dawson,  2  Bland  264;  Childs  v.  Hon-,  1  Cole   (la. 
482;  Rogers  v.  Mitchell,  41  N.  H.  154;  Pierce^v.  West,  1  Peters 
C.  C.  351ftCinnmini.''s  v.  Core  v.  58  Mich.  4i)4ff  Wek-ert  v.  Frank, 
56  Mich.  21)0;  Duri'ee  v.  McClurg,  (i   Mich.  2213. 

There  is  an  exception  to  the  rule  that  the  complain- 
ant can  <?o  to  a  hearing  on  the  bill  and  answer  when 
the  admissions  contained  in  the  answer  are  sufficiently 
full  and  explicit.  No  decree  can  be  taken  on  a  bill 
confessed  against  an  infant  defendant,  or  on  an  answer 
of  a  guardian  ad  litem,  admitting  the  allegations  con- 
tained in  the  bill,  but  the  complainant  must  in  either 
case  sustain  his  bill  by  evidence. 

Thayer  v._  Lane,  Walk.  Ch.  200;  Chandler  v.  McKinney,  6 
Mich,  iiltf;  Smith  v.  Smith,  13  Mich.  258. 

Upon  the  hearing  of  a  cause  upon  bill  and  answer 
no  proof  is  introduced  by  either  party,  but  if  the 
answer  refers  to  matter  of  record  proved  by  the  record 
itself,  or  to  exhibits,  the  record  and  exhibits  are  re- 
garded as  a  part  of  the  answer  and  may  be  read  in 
evidence. 

Rowland  v.  Sturgis,  2  Hare  520;  Chalk  v.  Haine,  7  Hare  393; 
Legard  v.  Sheffield,  2  Atk.  377. 


KtJUITY    PLEADING     AND    PRACTICE.  143 

REPLICATION. 

If  the  complainant  cannot  go  to  a  hearing  upon  the 
bill  and  answer  he  must  join  issue  by  filing  a  replica- 
tion to  the  answer.  According  to  the  early  system  of 
equity  pleading,  if  the  defendant  setup  in  his  answer 
some  new  matter  by  way  of  defence  or  avoidance,  to 
which  new  matter  the  complainant  had  a  perfect  de- 
fence, he  set  this  up  in  a  replication,  and  if  he  wanted 
a  discovery  from  the  defendant  in  reference  to  such 
new  matter,  he  was  required  to  set  forth  the  evidence 
to  which  he  desired  the  defendant's  oath.  Under  the 
modern  system  of  pleading,  this  purpose  is  accom- 
plished by  the  complainant  amending  his  bill  and 
inserting  such  new  matter,  and  requiring  the  defend- 
ant, if  necessary,  to  file  an  amended  answer. 

Upon  the  replication  being  filed,  the  cause  is  at 
issue,  and  the  next  step  is  for  the  complainant  and 
defendant  to  take  such  proof  as  is  necessary  to  sus- 
tain the  contention  on  the  part  of  each. 

But  before  any  proofs  are  taken  it  is  important  that 
each  party  should  determine  how  much  of  his  case  has 
been  established  by  the  pleadings ;  what  facts  have 
been  admitted,  and  what  have  been  denied. 

Admissions  are  either 

I.  Upon  the  record,  or, 
II.  By  agreement  between  the  parties. 

I.       ADMISSIONS    UPON    THE    RECORD. 

These  may  be, 

1.  Constructive ;  such  statements   of    fact    as    the 


144  EQurrr  pleading  and  practick. 

parties  are  conclusively  presumed   to  have    admitted 
under  the  forms  of  pleading,  and, 

2.  Actual ;  such  statements  of  fact  as  are  actually- 
set  out  in  the  pleadings. 

We  have  seen  that  if  the  defendant  puts  in  a  plea 
to  the  bill,  he  thereby  admits  the  truth  of  all  the  mat- 
ters well  pleaded  by  the  complainant  and  not  traversed 
by  the  plea.  In  such  a  case  the  facts  set  forth  in  the 
bill  are  constructively  admitted  to  be  true,  and  the 
complainant  is  not  required,  upon  filing  a  replication 
to  the  plea,  to  introduce  any  proof  to  sustain  his  bill, 
except  as  to  those  matters  specifically  denied  by  the 
plea. 

When  the  bill  charges  a  fact  to  be  within  the 
knowledge  of  the  defendant,  or  which  from  the  whole 
context  of  the  bill  can  be  fairly  presumed  to  be  within 
his  knowledge,  and  the  answer  is  silent  as  to  that  fact, 
it  will  be  taken  as  admitted. 

McAllister  v.  Clopten,  51  Miss.  357. 

But  when  the  fact  is   not  charged    as  within   the 

knowledge  of  the  defendant  and  can  not  be  presumed 

to   be  so,  it    is  not    admitted   by    the    silence  of   the 

answer. 

Hardy  v.  Heard,  15  Ark.  184;  Moore  v.  Lockett,  2  Bibb.  «7, 
69;  Neal  v.  Hagthorp,  3  Bland  551. 

Any  material  matter,  as  a  general  rule,  charged   in 

the  bill,  and  neither    admitted  nor  denied,  must  be 

proved  by  the  complainant. 

Brown  v.  Pierce,  7  Wall..  205,  211fl3mitb.  v.  St.  Louis  M.  L. 
Co..  2  Tenn.  Ch.  599,(f6l)2;/Hardwick  v.  Bassett.  25  Mich.  149. 


a.*-** 


o. 


EQUITY    PLEADING    AND    PRACTICE. 


145 


It*  answer  upon  oatli  has  been  waived,  all  admissions 
made  by  the  defendant  in  his  answer  may  be  read  in 
evidence  against .  him,  without  making  the  denials 
contained  in  the  answer  evidence  in  his  favor. 

Smith  v.  Potter,  3  Wis.  432. 

The  facts  positively  alleged  in  the  bill  may  be  read 
in  evidence  by  the  defendant  as  admissions  made  by 
the  complainant.  The  complainant  as  a  matter  of 
course  cannot  read  his  own  bill  as  evidence  in  his 
favor,  unless  the  defendant  has,  by  his  answer, 
admitted,  directly  or  by  implication,  the  truth  of  cer- 
tain parts  of  the  bill,  in  which  case  the  complainant 
may  read  such  portions  of  his  bill  as  the  admissions: 
of  the  defendant. 

McGowan  v.  Young,  2  Stewart  276. 

Although  by  his  replication  the  complainant  denies 
the  truth  of  the  whole  of  the  defendant's  answer,  he  is 
not  precluded  from  using  any  part  of  it  as  evidence 
in  his  favor,  unless  it  be  the  answer  of  an  infant. 
When  the  complainant  reads  a  part  of  the  defendant'- 
answer  as  an  admission  in  his  favor,  he  must  read  all  of 
the  answer  bearing  on  that  subject  and  any  other 
writings  referred  to;  he  must  take  the  admission  with 
all  the  limitations  and  explanations  with  which  it  is 
accompanied. 

Bartlett  v.  Gillard,  3  Russ.  149:  Beech  v.  Havues.  1  Tenn.  Ch. 
569,  571 ;  Lady  Ormond  v.  Hutchinson,  13  Ves.  47,  53. 

It  is  not  necessary  that  the  defendant    should  in  his 
answer  make  a  positive  admission  in  order  to    have  it 
10 


146  EQUITY    PLEADING    AND    PRACTICE. 

read  in  evidence  against  him,  it  will  be  sufficient  if  be 
alleges,  that  he  believes,  or  is  informed  and  believes, 
it  to  be  true  ;  unless  it  is  accompanied  by  some  state- 
ment which  prevents  its  being  considered  as  an  admis- 
sion. 

Potter  v.  Potter,  1  Ves.  Sen.  274;  Hills  v.  McKinney,  3  Stew. 
Eq.  465;  Jackson  v.  Oglander,  2  H.  &  M.  465. 

When  answer  under  oath  has  not  been  waived  so 
much  of  the  answer  as  is  responsive  to  the  discovery 
sought  by  the  bill  may  be  read  in  evidence  by  the 
defendant.  And  where  the  allegations  in  the  bill 
have  been  positively  denied  in  the  answer  the  com- 
plainant will  not  be  entitled  to  a  decree,  based  upon 
such  allegations,  unless  they  are  supported  by  two 
witnesses,  or  by  one  witness  with  corroborating  cir- 
cumstances, or  from  corroborating  circumstances  or 
documentary  evidence  alone. 

Hart  v.  Ten  Eyck,  2  Johns.  Ch.  62,  92;  Panton  v.  Tefft,  22 
111.  367;  Gould  v.  Gould,  3  Story  516,  540. 

The  right  of  the  defendant  to  have  his  answer  taken 
in  evidence  is  co-extensive  with  his  obligation  to 
answer. 

Blaisdell  v.  Bowers,  40  Vt.  126. 

And  the  complainant  is  not  permitted  to  impeach 

the  character  of  the  defendant  for  truth  and  veracity. 

He  has  made  him  his  witness. 

Vandergrift  v.  Herbert,  3  C.  E.  Green  466,  460:  Chambers  v. 
Warren,  13  111.  318,  321^  " 

When,  however,  the  answer  contains  allegations  not 
responsive  to   anything   contained   in   the    bill,  upon 


EQUITY    PLEADING    AND    PRACTICE.  147 

which  the  defendant  was  interrogated,  but  in  opposi- 
tion to,  or  avoidance  of  the  plaintiff's  case,  such  alle- 
gations are  not  made  evidence  by  the  answer,  but 
must  be  established  by  independent  proof. 

Clements  v.  Moore,  6  Wall.  299,  315;  Seitz  v.  Mitchell,  91  U. 
8.  580;  Roberts  v.  Stigleman,  78  111.  120;  Hart  v.  Carpenter,  36 
Mich.  402. 

It  is  not  always  easy  to  determine  whether  a  par- 
ticular allegation  in  the  defendant's  answer  is  new 
matter,  or  is  matter  responsive  to  the  bill.  It  has  been 
said,  that  if  the  particular  allegation  can  be  omitted 
from  the  answer,  and  the  complainant's  interrogatories 
will  still  be  fully  answered,  it  is  new  matter,  but  if, 
when  stricken  out,  the  answer  could  be  excepted  to 
for  insufficiency,  that  it  is  responsive. 

Bellows  v.  Stone,  18  N.  H.  465. 


148  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  XII. 


II. ADMISSIONS    BY    AGREEMENT. 

These  are  admissions  made  by  the  parties  to  pre- 
vent delay  and  save  expense.  It  is  the  practice  in 
this  state,  and  undoubtedly  in  other  states  also,  to  put 
such  admissions  in  the  form  of  a  written  stipulation. 
Such  stipulation  is  entitled  in  the  cause,  and  usually 
proceeds  as  follows : 

In  this  cause  it  is  hereby  stipulated  by  and  between 
said  parties ; 

1st,  That,  &c. 

2d.    That,  &c. 

Finally,  that  the  facts  hereby  and  herein  set  forth 
shall  be  considered  by  the  court  upon  the  hearing  of 
said  cause  as  admissions  made  therein  by  said  parties, 
and  may  be  read  as  evidence  upon  the  hearing  of  said 
cause. 

The  stipulation  is  signed  by  the  solicitors  for  com- 
plainant and  defendant  and  is  filed  with  the  other 
proof. 

TAKING    TESTIMONY. 

Formerly  all  testimony  in  chancery  was  taken  upon 
interrogatories  before  an  examiner,  and  neither  party 
to  the  suit  was  permitted  to  be  present  in  person  or 
by  counsel.  Nor  was  either  party  entitled  to  a  copy 
of  the^  interrogatories   prepared   by  the   other  for  his 


EQUITY    PLEADING    AND    PKACTICE.  149 

witnesses.  As  we  Lave  seen,  the  bill  did  not  set  forth 
the  evidence  tending  to  establish  the  case  made  by  the 
bill,  but  merely  the  facts  which  snch  evidence  would 
tend  to  establish  when  introduced.  Each  party  drew 
up  the  interrogatories  for  his  own  witnesses  and  the 
witnesses  were  secretly  examined  by  the  examiner  and 
no  part  of  the  testimony  was  divulged  to  either  side. 
Each  party  was,  however,  entitled  to  be  furnished 
with  a  list  of  his  opponent's  witnesses,  that  he  might 
examine  them  upon  cross  interrogatories  if  he  desired, 
but  since  he  neither  knew  what  the  direct  interrog-a- 
tories  were  nor  how  they  had  been  answered,  such 
cross-examination  was  not  only  unsatisfactory,  but 
quite  likely  to  do  his  cause  more  harm  than  good. 
Full  directions  were  given  as  to  how  the  examiners 
were  to  proceed.  The  witness  was  not  permitted  to 
see  the  interrogatories  he  was  to  answer ;  each  one  was 
read  over  to  him  and  he  was  required  to  answer  it  in 
full  before  the  next  was  read.  After  the  testimony 
was  taken  it  was  riled  in  court  and  then  published,  i.  e., 
opened  for  inspection,  and  each  side  was  furnished 
with  copies,  and  thus  after  the  cause  was  ready  for 
hearing,  the  counsel  for  the  first  time  learned  what 
evidence  had  been  introduced. 

Daniel  Ch.  Pr.  Chap.  XX. 

This  system  was  cumbrous,  unsatisfactory,  often 
unfair  and  fell  into  merited  disrepute.  The  rules  for 
taking  proofs  were  from  time  to  time  modified,  until 
at  the  present  time  testimony  is  taken  with  the  same 
publicity  and  with  little  more  formality  than  proofs 


150  KQUITY    PLEADING    AND    PRACTICE. 

are  taken   in  a  law  court.     In  tills  State,  under  the 
statute,  either  party,  by  giving  the  other  notice  within 
ten  days  after  a  cause  is  at  issue,  may  have   all  the 
witnesses  examined  in  open  court. 
H.  S.  §  6647. 

The  Supreme  Court  are  empowered  by  the  statute 
to  regulate  the  taking  of  testimony  in  chancery,  and 
in  pursuance  of  such  power,  they  have  adopted  certain 
rules  which  provide  that  when  a  cause   is  at  issue,  if 
neither  party  has  obtained  the  right  of  examination  of 
witnesses  in  open  court,  either  party  may  enter  an 
order  of  course  within  thirty  days  after  the  expiration 
of  the  time  for  obtaining  the  right  to  examine  wit- 
nesses in  open  court,  to  take   proof  within  sixty  days 
from  service  of  notice  of  such  order,  and  that  there- 
after either   party   may   within   the  sixty   days,  upon 
giving  the  other  party  ten   days'  notice  of  the  time, 
place  and  names  of  the  witnesses  he  intends  to  exam- 
ine, take  the  testimony  of  any  of  his  witnesses. 
Mich.  Rule  47;  Brown  v.  Brown,  33  Mich.  242.^ 
Parties  may  stipulate  to  take  proofs  before  a  notary 
public,  and  this  is  frequently  done  when  there  is  a 
notary  who  is  a  stenographer  and   the  Circuit  Court 
Commissioner  is   not.     But  in  the  absence  of  a  stipu- 
lation   the  proofs  are    taken  before  a   Circuit  Court 
Commissioner.     At  the  time  and  place  designated  the 
party    appears    with    his   witnesses   and    proceeds   to 
examine  them  orally.     If  the  opposite  party  is  present 
and  does  not  object,  the  testimony  may  be  taken  in  a 
narrative  form  omitting  the  questions  asked,   but  if 


EQUITY    PLEADING    AND    PRACTICE.  151 

objection  is  made  to  that  course,  the  Circuit  Court 
Commissioner  writes  down  each  interrogatory  at 
length,  followed  by  the  answer  as  given  by  the  wit- 
ness. Should  the  opposite  attorney  object  to  any 
question  for  any  reason,  for  instance,  that  it  is  leading 
or  irrelevant,  etc.,  the  commissioner  writes  down  the 
objection,  but  does  not  pass  upon  it.  After  he  has 
taken  down  the  objection  he  writes  out  the  answer  of 
the  witness  in  the  language  of  the  witness.  If  objec- 
tion is  made,  the  court  regards  such  testimony  as  taken 
snbject  to  the  objection,  which  is  considered  and  ruled 
upon  at  the  hearing.  Although  the  commissioner  can- 
not pass  upon  objections  made  to  testimony,  it  would 
seem  that  he  may  exercise  some  discretion  in  the  first 
instance  in  regard  to  taking  down  scandalous  matter, 
or  testimony  that  the  witness  is  privileged  from  giv- 
ing. 

Storrs  v.  Scougale,  48  Mich/333;  Rea  v.  Rea,  53  Mich.  40.  ) 
In  nearly  every  instance,  however,  it  is  the  better 
practice  for  the  commissioner  to  take  down  all  the 
testimony  offered,  together  with  the  objections  made 
to  it,  and  leave  the  admissibility  of  the  testimony  to 
the  Circuit  and  Supreme  Court.  The  Supreme  Court 
have  held  that  it  is  not  the  proper  practice,  for  the 
circuit  court  even,  to  expunge  testimony  that  in  its 
judgment  is  inadmissible,  but  to  allow  it  to  stand,  so 
that,  in  case  of  an  appeal  to  the  Supreme  Court,  that 
court  may  be  in  a  position  to  consider  and  pass  upon 
its  admissibility.  The  Supreme  Court,  sitting  in 
chancery,    is  not  a  court  of  errors,    but  an   appellate 


152  EQUITY    PLEADING    AND    PRACTICE. 

court,  and  it  hears  the  cause  de  novo,  and  must  there- 
for pass  upon  all  questions  of  the  admissibility  of 
testimony  which  was  before  the  lower  court. 

ttilg  v  Ttilr  °,7  Mirh,  1lfi-  "Rrm-n  v.  Brown,  22  Mich.  242; 
Collins  v.  Jackson,  53  Mich.  40;  Hewlet  v.  Shaw,  9  Mich.  346. 

•  If  any  documents  are  introduced  in  evidence  before 
the  commissioner,  he  receives  them  and  marks  them 
as  exhibits,  numbering  them  consecutively.  When 
notified  of  the  entry  of  an  order  closing-  proofs,  the 
commissioner  files  the  testimony  taken  by  him  in  the 
cause,  and  it  is  published. 

If  any  of  the  witnesses  in  a  cause  reside  out  of  the 
state,  or  more  than  thirty  miles  from  the  commissioner, 
the  party,  desiring  to  take  the  testimony  of  such  wit- 
nesses, may  apply  to  the  judge  or  the  register,  for  a 
commission  to  examine  such  witnesses. 

Mich.  Rules  48,  49,  50,  51,  52,  53. 

The  statute  provides  that  the  counsel  of  the  respect- 
ive parties  may  be  present  at  such  examination,  and 
that  witnesses  may  be  examined  and  cross-examined 
orally,  and  that  the  testimony  so  taken  shall  be  reduced 
to  writing  and  subscribed  by  the  witnesses,  and  filed 
in  the  court  where  the  cause  is  pending. 

H.  S.  §§  6639-6646. 

When  a  deed  or  other  instrument  in  writing  which  is 
duly  acknowledged  or  proved,  in  such  manner  as  to  au- 
thorize it  to  be  read  in  evidence,  is  stated  in  the  bill, 
such  deed  or  instrument  may  be  read  upon  the  hearing 
of  the  cause,  unless  the  defendant  has  in  his  answer 
denied  the  due  execution  of  the  deed,  or  the  existence 


EQUITY    PLEADING    AND    PRACTICE.  153 

of  the  instrument ;  but  documents  which  are  of  them- 
selves evidence,  without  further  proof,  shall  not  be 
read  on  the  hearing,  unless  they  have  been  made 
exhibits  before  the  commission. 

Mich.  Rule  50;  Bachelor  v.  Nelson,  Walk.  Ch.  449;  Jerome  v. 
Seymour,  Har.  Ch.  255;  Swetlaud  v.  Swetland,  3  Mich.  482. 

The  method  of  taking  testimony  in  the  United 
States  court  is  regulated  by  Kules  67,  68  and  69, 
which  provide  that  the  testimony  of  witnesses  may  be 
taken  upon  direct  and  cross  interrogatories,  or  orally, 
before  an  examiner.  When  it  is  taken  orally,  the 
court  may,  on  motion  of  either  party,  assign  a  time 
within  which  the  complainant  shall  take  his  evidence, 
and  the  time  thereafter  within  which  the  defendant 
shall  rake  his.  The  rules  prescribe  that  the  testimony 
in  a  cause  shall  be  taken  within  three  months  after 
the  cause  is  at  issue,  unless  further  time  is  given  by 
the  court,  or  judge,  upon  cause  shown. 

When  a  witness  is  infirm  or  about  to  depart  out  of 
the  country,  or  is  the  sole  witness  to  a  material  fact, 
his  testimony  may  be  taken  at  any  time  after  the 
cause  is  at  issue  d<  bent  esse,  upon  leave  granted. 

U.  S.  Rule  70. 

HEARING    OF    THE    CAUSE. 

When  the  proofs  are  closed  and  the  cause  is  ready 
for  hearing,  it  may  be  noticed  for  hearing  by  either 
party,  and  causes  are  entitled  to  be  heard  in  this  state 
in  the  order  in  which  the  replication  to  the  answer 
was  filed. 

Mich.  Rule  63. 


154  EQUITY    PLEADING    AND    PRACTICE. 

Upon  the  hearing  the  complainant  has  the  opening 
and  closing.  As  a  rule,  the  judge,  before  the  hearing 
on  the  merits  commences,  has  the  counsel  for  the 
complainant  state  in  his  own  language  the  purpose 
for  which  the  bill  was  filed,  and  its  principal  allega- 
tions of  fact,  and  he  then  requests  the  defendant  to 
state  the  defence  made  in  the  answer.  Having  thus 
made  himself  familiar  with  the  matters  in  issue,  he 
next  proceeds  to  ascertain  what  facts  are  admitted,  and 
about  which  there  is  no  controversy,  and  what  facts 
are  in  dispute.  If  only  a  part  of  the  facts  in  the  case 
are  in  dispute,  he  confines  the  reading  of  the  testimony 
and  the  comments  of  counsel  to  that  part  of  the  testi- 
mony bearing  upon  those  question?. 

In  reading  the  testimony  to  the  court,  the  com- 
plainant reads  the  direct  testimony  given  by  his  own 
witnesses,  and  the  defendant  reads  the  cross-examina- 
tion. When  the  defendant's  testimony  is  reached,  the 
defendant's  counsel  reads  the  direct  and  the  com- 
plainant's the  cross-examination.  At  the  close  of  the 
hearing  the  court  may  decide  the  case,  or  hold  it  under 
advisement,  and  render  his  decision  at  some  future 
day.  Causes  are  frequently  heard  out  of  term,  and  at 
chambers  by  arrangement  made  between  the  court  and 
counsel.  In  such  a  case  the  cause  is  formally  submitted 
to  the  court  in  term,  and  the  argument  made  after- 
wards before  the  court.  In  this  manner  it  appears 
upon  the  record  that  all  the  proceedings  were  had  in 
court,  and  all  appearances  of  irregularity  are  avoided. 
The  argument  of  a  cause  before  the  court  at  chambers 


EQUITY    PLEADING    AND    PRACTICE.  155 

is  indeed  not  an  irregularity,  but  the  submission  of  a 
cause  to  the  court  in  vacation  would  be,  and  a  decree 
rendered  in  vacation  upon  the  final  hearing  of  a  cause 
would  be  a  nullity. 

If  there  is  any  good  reason,  on  account  of  the  na- 
ture of  the  testimony,  a  cause  will  be  heard  in  private, 
and  the  public  will  be  excluded.  The  court  may 
direct  that  the  cause  shall  be  heard  in  private  at  the 
request  of  counsel,  or  on  its  own  motion. 

JVlatter  of  Lord  Portsmouth  Cooper,  Rep.  IPC;  Ogle  v.  Brond- 
ling,  2  Rnss.  &  Mv.  fiflfl. 

An  objection  to  the  bill  based  on  want  of  proper 
parties  may  be  made  at  the  hearing,  but  if  the  defect 
can  be  cured  by  amendment  and  service  be  had  upon 
the  new  parties,  the  court  will,  upon  terms,  allow  the 
cause  to  stand  over  and  the  proper  parties  may  be 
added. 

Jones  v.  Jones,  3  Atk.  110;  Palmer  v.  Rich,  12  Mich.  414. 

The    objection,     however,     must    come     from    the 

defendant,  as  the  complainant  cannot  postpone    the 

cause  without  his  consent,  unless  the  complainant  was 

ignorant  of   the  persons  whose  claims  will  be  affected 

by  the  decree. 

Inness  v.    Jackson.    16  Ves.  356;  Thomas  v.  Gaines,  35  Micih_ 
155-165. 

If  the  objection  of  want  of  parties  has  been  made  by 
the  defendant  in  his  answer  and  the  complainant  has 
neglected   to    amend    his   bill  in    that  particular,  the 


156  EQUITY    PLEADING    AND    PRACTICE. 

court  may  in  its  discretion  refuse  to  allow  the  cause  to 
stand  over  and  dismiss  the  bill. 

Van  Epps  v.  Van  Deusen,  4  Paige  64;  Bank  v.  Seton,  1  Peters 
299;  Story  v.  Livingstone,  13  Peters  359;  U.  S.  Rule  52. 

When  upon  the  hearing  it  is  discovered  that  the 
proofs  are  defective  in  some  formal  matter,  the  court 
will,  if  a  reasonable  excuse  is  given  for  the  omission, 
allow  the  cause  to  stand  over  for  the  purpose  of  sup- 
plying such  defects. 

1  Barbour  Cb.  Pr.  322-323;  U.  S.  Rule  53. 

DISMISSING    THE    BILL    AT    THE    HEARING. 

When  the  pleadings  are  defective,  or  when  through 
some  informality  in  the  bill  the  court  cannot  give  the 
complainant  relief,  or  where  from  some  other  cause 
the  bill  is  dismissed  without  the  courts  passing  upon 
the  merits,  and  it  appears  that  the  complainant  may  be 
entitled  to  some  relief,  it  will  be  dismissed  without 
prejudice. 

Story  Eq.  PI.  §§456,  793;  Wilson  v.  Egleston,  25  Mich.  257. 

But  if  a  bill  is  dismissed  by  the  court  upon  the  hear- 
ing absolutely,  such  dismissal  may  be  pleaded  in  bar 
to  a  new  bill  filed  for  the  same  cause  of  action  ;  and  a 
bill  cannot  be  dismissed  without  prejudice  when  a 
new  bill  must  cover  the  same  ground. 

Crozier  v.  Acre,  7  Paige  137;  Gale  v.  Gould,  40  Mich.  515. 

A  bill  is  sometimes  dismissed  and  the  complainant 
given  leave  to  bring  an  action  at  law.  The  court  may 
make  an  order  retaining  the  bill  for  a  certain  period 


EQUITY    PLEADING    AND    PRACTICE.  157 

with  liberty  to  the  complainant  to  proceed  at  law,  con- 
ditioned, that  if  he  fails  to  do  so,  that  the  bill  be  dis- 
missed absolutely. 

1  Barb  Ch.  Pr.  324,  325. 

In  this  state  the  court  may  at  the  hearing  upon 
pleadings  and  proofs  call  upon  either  party  or  any 
witness  to  testify  before  the  court  orally. 

Rule  99;  Hamilton  v.  Hamilton,  37  Mich.  003. 

FEruNED    ISSUES. 

It  sometimes  happens  that  the  testimony  is  so  con- 
flicting and  unsatisfactory,  that  the  court  or  the 
parties  may  desire,  that  a  particular  question  of  fact 
be  found  by  a  jury.  An  issue  made  for  that  purpose 
is  called  a  feigned  issue. 

3  Black.  Cases  452. 

The  court  approves  the  frame  of  the  issue  and  it  is 
tried  substantially  as  a  suit  at  law. 

3  Barbour  Ch.  Pr.  484;  Milk  v.  Moore,  39  III.  584-58S;  Rus- 
sell v.  Paine,  45  111.  350;  Wood  v.  Wood,  2  Paige  109;  Dunn  v. 
Dunn,  11  Mich.  285;  Brink  v.  Morton,  2  Cole  (la.)  411;  Hall  v. 
Doran,  6  Cole  (la.)  433. 


158  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  XIII. 


DECREES. 


A  decree  is  a  sentence  of  a  court  of  chancery  deter- 
mining the  rights  of  the  parties  to  the  suit. 

Decrees  are  of  two  kinds,  Interlocutory  and 
Final. 

An  interlocutory  decree  is  a  decree  made  during  the 
pendency  of  the  cause  to  facilitate  the  taking  of  proofs, 
or  to  protect  the  rights  of  the  parties,  or  to  aid  the 
court  in  arriving  at  a  correct  conclusion  in  regard  to 
some  disputed  fact,  but  which  is  not  a  final  determi- 
nation of  the  rights  of  the  parties  in  whole  or  in  part. 

A  final  decree  is  one  that  disposes  of  the  whole 
or  some  part  of  the  case  on  the  merits  and  reserves 
no  question  for  the  further  judgment  of  the  court 
thereon. 

Crosby  v.  Buchanan,  23  Wall.  420;  Lewis  v.  Campau,  14  Mich. 
458-460;  Winthrop  v.  Muker,  109  U.  S.  180;  Bank  v.  Shedd, 
121  U.  S.  74. 

It  is  sometimes  exceedingly  difficult  to  draw  the 
distinction  between  an  interlocutory  and  final  decree. 
The  distinction  is,  however,  an  important  one,  since 
the  right  to  appeal  from  a  decree  is  a  statutory  right 
and  must  be  strictly  followed,  and  the  statute  usually 
restricts  the  right  of  appeal  to  final  decrees.  It  may 
be  said  that  any  decree  which  finally  disposes  of  the 


EQUITY    PLEADING    AND    PRACTICE.  15(J 

rights  of  the  parties  upon  the  merits  of  any  branch  of 
the  controversy  is  final,  but  that  if  the  merits  are  not 
passed  upon  and  the  order  is  made  simply  to  take  an 
additional  step  towards  a  final  determination  upon  the 
merits,  it  is  interlocutory,  provided,  the  rights  of  the 
parties  remain  in  statu  quo,  for  any  decree  which 
divests  a  party  of  a  pre-existing  legal  right  is  final. 

Barry  v.  Briggs,  22  Mich.  201;  Tawas,  etc.  R.  R.  v.  Iosco  Ct., 
44  Mich.  479;  Jennison  Cb.  Pr.  Chap.  18;  Bank  v.  Whitney, 
121  U.  S.  284;  Railroad  v.  Simmons.  123  U.  S.  52;  Grant  v.  In- 
surance Co.,  121  U.  S.  105 

SETTLING    DECREES. 

The  party  in  whose  favor  the  judgment  of  thecourt 
is  made,  makes  a  draft  of  such  a  decree  as  he  deems  he 
is  entitled  to  under  the  decision.  He  serves  upon  the 
opposite  solicitor  a  copy  of  this  draft,  with  notice  of 
the  time  and  place,  when  he  will  apply  to  the  court  to 
have  it  settled.  If  the  draft  is  satisfactory  to  the  so- 
licitor upon  whom  service  is  made,  he  usually  indicates, 
by  an  indorsement  on  the  draft,  his  consent  to  have  a 
decree  settled  in  that  form.  If  it  is  not  satisfactory, 
he  proposes  amendments  and  appears  before  the  court, 
and  the  court  settles  the  decree,  after  the  parties  are 
heard  and  signs  it.  The  decree  is  then  countersigned 
by  the  register  and  entered  in  the  journal  of  the  court 
at  length. 

The  decree  should  in  apt  terms  set  forth  clearly  and 
methodically  the  judgment  of  the  court.  If  the  de- 
fendant is  required  to  do  or  to  refrain  from  doing  some 


160  EQUITY    PLEADING    AND    PRACTICE. 

act  it  should  be  distinctly  set  forth,  and  if  the  defend- 
ant is  required  to  perform  some  act  the  time  within 
which  it  is  to  be  performed  and  the  manner  of  per- 
formance, and  the  conditions,  should  be  made  exceed- 
ingly plain. 

FORM    OF    DECREE. 

The  formal  parts  of  a  decree  are :  1.  Date  and 
title.  2.  Recitals.  '■).  Ordering  part ;  and  to  this  is 
sometimes  added   the  declaratory   part. 

At  first  the  decree  on  its  face  set  forth  the  plead- 
ing's and  the  evidence,  but  usually  at  the  present  time 
the  decree  recites  merely  the  substance  of  the  plead- 
ings and  the  facts  upon  which  it  is  founded,  and  in 
the  United  States  court  not  even  that  is  done.  Rule 
86  provides  that  no  part  of  the  bill,  answer  or  other 
pleadings  or  report  of  the  master,  or  other  prior  pro- 
ceedings, shall  be  recited  in  a  decree. 

U.  S.  Rule  86;  Dexter  v.  Arnold,  5  Mason  303,  311;  Bartlett 
v.   Fifield,  45  N.  H.  82,  83. 

It  is  still  the  practice  in  some  of  the  states,  however. 

to  set  forth  the  evidence  in  substance  in  the  decree. 

Walker  v.  Carey,  53  111.  470;  Moss  v.  McCall,  75  111.  190; 
Hilleary  v.  Thompson,  11  W.  Va.  113;  Allen  v.  Blunt,  1  Blatcb. 
C.  C.  480. 

In  the  mandatory   part   of    the   decree   great  care 

should  be  taken  to  meet  the  case  disclosed  and  secure 

the  rights  of  each  of  the    parties.     The   decree  must 

be  consistent  with  itself.     But  the  court  may  without 

contradiction  pass  a  separate,  a  reciprocal,  a   direct  or 

an  inverted  decree  to  meet  the  nature  of  the  case. 


EQUITY    PLEADING    WD    PBAGTIOE. 


161 


Lingou  v.  Henderson,  1  Bland  275 ;  Hodges  v.  Milliken,  1  Bland 
507;  Owens  v.  Case,  1  Bland  404;  Elliot  v.  Pell,  1  Paige  263. 

When  a  mistake  or  clerical  error  has  been  made  in  a 

decree,  it  may  be  corrected  by  the  court  upon  motion 

or  petition,  made  after  entry  and  before  enrollment. 

Bates  v.  Garrison,  Har.  Ch.  221;  U.  S.  Rules  85;  Dexter  v. 
Arnold,  5  Mason  303;  Whiting  v.  Bank,  13  Peters  G;  Tilton  v. 
Barnee,  17  Fed.  Rep.  59,  Coleman  v.  Neil,  11  Fed.  Rep.  461. 

The   party  making  the  application  must  show  that 

he  has  been  injured  by  the  error  or  mistake  however. 

Russell  v.  Wake,  Walk.  Ch.  :)1 ;  Insurance  Co.  v.  Wkittmore, 
12  Micl).  427;  York  v.  Ingham  Ct.  Judge,  57  Mich.  421;  Hart  v. 
Lindsay,  Walk.  72. 

At  common  law  a   decree   did    not    become  a    final 

record  of  the  court  until  it  was  enrolled.      It  must  be 

enrolled  before  a  deed  can  be  executed  on  a  sale  under 

a  decree  and  before  an  execution  can  issue  to  enforce 

performance  of  such  a  decree. 

Minthorne  v.  Thomas,  2  Paige  102;  Taylor  v.  Gladwin,  40 
Mich.  233;  Mickle  v.  Maxfield,  42  Mich.  304;  Law  v.  Mills,  61 
Mich.  35;  Long  v.  Long,  59  Mich.  296. 

The  decree  is  enrolled  in  the  following  manner  : 
The  register  of  the  court  in  which  the  decree  is  en- 
tered, attaches  together  the  bill,  pleading  and  such 
other  papers  as  the  general  rules  direct,  together  with 
the  taxed  bill  of  costs  therein,  and  annexes  thereto  a 
fair  engrossed  copy  of  the  decretal  order,  signed  bv 
the  circuit  judge  and  countersigned  by  the  register 
who  entered  the  same.  The  register  then  annexes  r>> 
the  papers  so  attached  together  his  certificate,  under 
the  seal  of  the  court,  wherein  he  certifies  according  to 
11 


162  EQUITY    PLEADING    AND    PRACTICE. 

the  fact,  the  time  when  the  papers  were  attached  to- 
gether, for  the  purpose  of  enrollment  and  the  names 
of  the  parties  at  whose  instance  the  same  was  done. 

Schwab  v.  Mabley.  47  Mich  512;  Long  v.  Long,  59  Mich.  296; 
Loud  v.  Winchester,  52  Mich.  174;  Low  v.  Mills,  61  Mich.  35; 
Mickle  v.  Maxfield,  42  Mich.  304 

After  a  decree  has  been  duly  enrolled  it  cannot  be 
disturbed  upon  motion  or  petition.  It  can  only  be 
opened  upon  a  bill  of  review  tiled  upon  leave  granted, 
and  the  power  of  the  court  to  grant  leave  is  discre- 
tionary. 

Maynard  v.  Pereault,  30  Mich.  160;  Vaughn  v.  Black,  63  Mich. 
215;  Clark  v.  Circuit  Judge,  40  Mich.  166. 

As  a  general  rule,  all  who  are  parties  or  privies  to 
a  decree  are  bound  by  it,  and  no  one  who  is  not  a 
party,  or  is  not  represented  by  or  in  privity  with  a 
party  to  the  suit,  is  bound. 

Burk  v.  Sherman,  2  Doug.  176;  Greiner  v.  Klein,  28  Mich.  12, 
17;  Brown  v.  Wynkoop,  2  Blackf.  230;  Com.  v.  Cambridge,  4 
Mass  627;  Mallow  v.  Hinde,  12  Wheat.  193;  Richter  v.  Jerome, 
123  U.  S.  233;  Atkinson  v.  Flanigan,  Mich.  Jan.  1888;  German 
Seminary  v.  Saenger,  Mich.  Jan.  1888. 

ENFORCEMENT    OF    DECREES. 

It  is  one  of  the  maxims  of  equitiy  that  it  acts  in 
personam.  "  The  strict  primary  decree  in  this  court," 
said  Lord  Chancellor  Hardwicke,  "is  in  personam, 
and  although  this  court  cannot  issue  execution  in  rem, 
e.  g.,  by  elegit,  still  I  can  enforce  the  judgment  of 
the  court,  which  is  in  personam  by  process  in  per- 
sonam, e.  g.,  by  attachment  of  the  person  when  the 


EQUITY    PLEADING    AND    PRACTICE.  163 

person  is  within  the  jurisdiction,  and  also  by  seques- 
tration, so  far  as  there  are  goods  and  lands  of  the 
defendant  within  the  jurisdiction  of  the  court,  until 
the  defendant  do  comply  with  the  order  or  judgment 
of  the  court,  which  is  against  the  defendant  personally, 
to  do  or  cause  to  be  done,  or  to  abstain  from  doing 
sotne  act." 
.  Penn.  v.  Lord  Baltimore,  1  Ves.  385. 
Therefore,  unless  the  power  of  the  court  has  been 
enlarged  by  the  statute,  the  performance  of  an  order 
or  decree  of  the  court  is  enforced  by  what  is  termed 
a  process  of  contempt.  The  process  is  based  upon 
the  theory  that  the  defendant  having  been  commanded 
to  do,  or  to  refrain  from  doing  a  particular  act,  his 
neglect  to  do,  or  not  to  do  that  particular  act,  is  in 
contempt  of  the  authority  of  the  court,  and  for  that 
contempt  he  has  merited  punishment.  The  law  courts 
acts  upon  an  entirely  different  theory.  They  do  not 
regard  the  defendant,  who  fails  to  satisfy  a  judgment 
rendered  against  him,  as  in  contempt  of  the  court, 
but  issue  a  process  to  satisfy  the  plaintiff's  demand. 
That  may  be  satisfied  by  seizure  and  sale  of  the 
defendant's  property  or  the  imprisonment  of  the  body 
of  the  defendant,  and  when  both  remedies  are  given 
the  plaintiff  must  elect  which  he  will  pursue. 

Contempt  of  the  court  of  equity  is  technically  dis- 
regarding a  command  of  the  court  evidenced  and 
authenticated  by  its  great  seal,  and  consequently 
before  a  party  can  be  said  to  have  incurred  such  con- 
tempt, he  must  be  personally  served  with  the  mandate 


164  EQUITY    I'LKADING    AND    PRACTICE. 

of  the  court  under  seal,  and  the  mere  service  of  a  copy 
of  the  decree,  or  order  of  the  court,  without  the  writ, 
is  not  sufficient. 

This  writ  is  called  a  writ  of  execution,  and  it  recites 
the  order  or  decree,  or  that  part  of  it,  which  the 
defendant  is  to  obey.  At  first  it  was  the  practice  to 
insert  the  entire  decree,  but  afterwards,  by  order  of 
the  court,  if  the  decree  was  for  the  payment  of  money 
the  substance  of  that  part  directing  the  payment  of 
money  was  inserted. 

When  the  order  or  decree  directs  the  defendant  to 
do  a  particular  act,  which  he  neglects  to  do,  the  writ 
of  execution  commands  him  to  do  the  act  within  a 
specified  time,  and  if  it  is  not  done  within  the  time 
limited,  the  party  is  then  in  contempt. 

The  statute  has,  however,  very  materially  enlarged 
the  powers  of  the  court,  and  in  this  State  the  statute 
provides  that  courts  of  equity  may  enforce  the  per- 
formance of  any  decree  or  obedience  thereto,  by  exe- 
cution against  the  body  of  the  party,  against  whom 
such  decree  shall  have  been  made,  or  by  execution 
against  the  goods  and  chattels,  and  in  default  thereof, 
the  lands  and  tenements  of  such  party. 

H.  S .  §  6653;  Mickle  v.  Maxfield,  42  Mich.  304. 

Generally  the  writ  of  execution  must  be  served  upon 
the  party  himself  in  order  to  bring  him  into  contempt. 

This  is  done  by  handing  him  a  copy  and  showing 
him  the  original  under  the  seal  of  the  court.  But 
when  personal  service  cannot  be  had  upon  a  party 
owing  to  his  own  misconduct,  substituted  service  will 


EQUITY    PLEADING    AND    PRACTICK.  165 

be  directed.     A  party  will  not  be   permitted    to    put 

the  court  at  defiance. 

Tyson  v.  Ward,  1  Dickens  166;  Rider  v.  Kidder,  12  Ves.  202; 
DeManneville  v.  DeManneville,  12  Ves.  203. 

The  party  having  been  duly  served  with  a  writ  of 
execution,  if  he  neglect  to  obey  the  mandate,  and 
that  fact  is  brought  to  the  attention  of  the  court  by 
affidavit,  a  writ  of  attachment  is  issued,  upon  which 
the  party  is  arrested  and  brought  before  the  court,  and 
unless  he  can  purge  himself  of  the  contempt,  i.  e., 
offer  a  good  excuse  for  not  obeying  the  mandate,  he  is 
by  order  of  the  court  directed  to  comply  with  the 
mandate  instanter  or  stand  committed  to  jail. 

2  Danl.   Ch.  Pr.  Sec.  7. 

INTERLOCUTORY  PROCEEDINGS. 

The  proceedings  we  have  already  noticed  are  the 
usual  atid  regular  proceedings  had  in  every  cause  in 
chancer}7.  There  are  certain  interlocutory  proceed- 
ings to  which  we  will  now  call  yonr  attention,  none  of 
which  may  be  had  in  any  given  cause,  but  some  of 
which  are  usually  taken  at  some  stage  in  the  progress 
of  every  cause,  and  which  are  of  great  practical  impor- 
tance. 

An  interlocutory  application  is  a  request  made  to 
the  court  for  its  aid  and  assistance  in  some  matter  aris- 
ing in  the  cause,  either  to  further  the  proceedings  or 
to  protect  the  rights  of  some  of  the  parties  to  the 
suit.     These  applications    are     made     either    orally, 


166  EQUITY    PLEADING    AND    PRACTICE. 

when   they  are    called  motions,  or  in   writing,  when 
they  are  designated  petitions. 

There  is  no  inflexible  and  certain  ride  given  by 
which  yon  can  determine  whether  a  particular  appli- 
cation shall  be  made  by  motion  or  petition.  As  a 
general  rule,  when  the  application  is  based  upon  a 
long  or  intricate  statement  of  facts,  it  should  be 
made  by  petition  and  not  by  motion.  Otherwise 
the  application  may  be  made  by  motion. 

Shipbrooke  v.  Hinchinbrook,  1:!  Ves.  387,  393;  Shaft  v.  Phoenix 
Ins.  Co.,  67  N.  Y.  544,  547;  Bergan  v.  Jones,  4  Met.  371;  Jone3 
v.  Roberts,  12  Sim.  189;  Anon,  4  Madd.  229;  Skinner  v.  Sweet, 
Coop.  55. 

A  motion  may  be  made  by  or  on  behalf  of  any 
of  the  parties  to  the  suit,  who  is  not  in  contempt. 
If  a  party  is  in  contempt,  he  cannot  be  heard  until 
he  purges  himself  of  his  contempt. 

Johnson  v.  Pinney,  1  Paige  646;  Rogers  v.  Paterson,  4  Paige 
450;  Lane  v.  Ellzeg,  4  H.  &  M.  504. 

A    MOTION    IS    EITHER    OF    COURSE    OR    SPECIAL. 

A  motion  of  course  is  one  which  will  grant  upon 
an  exparte  application  and  without  hearing  the  other 
side,  under  some  standing  rule  or  the  known  practice 
of  the  court.  It  requires  no  notice  to  be  given  the 
opposite  party  as  no  opposition  will  be  allowed  to  it. 

Eyles  v.  Ward,  Mos.  255;  Barbour  Ch.  Pr.,  566. 

Motions  of  course  are  understood  to  be  confined  to 
orders  which  are  entered  by  the  register,  at  the  re- 
quest of  a  party,  without  any  application  being  made 
to  the  court. 

Mich.  Rule  24;  U.  S.  Rule  5. 


EQUITY     PLEADING    AND    PRACTICE.  U'»7 

A  special  motion  is  one  which   is  not  granted   by 
the  court  as  a  matter  of  course,  but    one  which  the 
court  may,  in  its  discretion,  after   cause  shown,  grant 
or  refuse.     They  are  made  either  ex  parte  or   upon    ' 
motion. 

There  is  no  clear  and  well  defined  rule  under  which 
special  motions  may  be  classified  into  those  which 
may  be  made  ex  parte  and  those  requiring  notice. 
You  must  in  a  great  measure  rely  upon  the  rules  of 
the  court  which  state  usually  whether  the  special  mo- 
tion requires  notice  or  not.  If  the  rules  are  silent, 
and  the  practice  is  uncertain,  the  safest  course  is  to 
give  notice. 

Marshall  v.  Mellnisb,  5  Beav.  496;  Isnard  v.  Cazeaux,  1  Paige 
39;  Hart  v.  Small,  4  Paige  551;  U.  S.  Rules  3,  4;  Mich.  Rule  61. 

Ex  parte  motions  are  made  for  a  variety  of  pur- 
poses— for  instance : 

For  an  order  that  an  absent  defendant  appear;  that 
complainant's  bill  be  taken  as  confessed;  to  show  cause 
why  injunction  should  not  issue ;  to  enlarge  the  time 
for  taking  testimony;  for  time  to  answer  for  appoint- 
ment of  a  guardian  ad  litem,  etc. 

Sometimes  upon  an  ex  -parte  'motion  an  order  is 
entered  that  a  particular  act  is  to  be  done  unless  the 
appointed  party  show  cause  to  the  contrary  within  a 
specified  time.  Such  an  order  is  called  an  order  nisi. 
After  the  time  limited  for  showing  cause,  or  doing  the 
act  required,  upon  motion  and  proof  by  affidavit  of 
non  compliance,  the  order  nisi,  is  made  absolute. 

Dan.  Ch.  Pr.  1594. 


168  EQUITY    PLEADING    AND    PRACTICE. 

All  ex  parte  motions  nmst  be  supported  by  affidavit 
or  other  proof  sufficient  to  make  a  case  for  the  inter- 
ference of  the  court. 

When  the  motion  is  not  of  course  and  cannot  be 
made  ex  parte,  notice  must  be  given  in  writing  to  the 
opposite  party.  This  being  simply  a  notice  that  an 
oral  motion  will  be  made  to  the  court,  the  form  of 
the  notice  becomes  important.  It  must  be  entitled  in 
the  court  and  cause  and  directed  to  the  solicitor  of  the 
opposite  party  and  signed  by  the  party  giving  the 
notice.  In  the  body  of  the  notice  the  particular  order 
or  direction  of  the  court  which  will  be  asked  for  must 
be  set  out  clearly  and  distinctly,  and  the  party  must  be 
informed  of  the  grounds  upon  which  the  application 
is  made,  and  consequently  the  notice  must  be  accom- 
panied with  copies  of  all  affidavits  and  other  proofs 
not  on  file  in  the  cause,  and  previously  known  to  the 
other  solicitor,  which  will  be  read  upon  the  hearing  of 
such  notion.  The  time  and  place  of  hearing  must  be 
also  given.  This  part  of  the  notice  usually  concludes 
with  the  words  "  or  as  soon  thereafter  as  counsel  can 
be  heard." 

Isnard  v.  Cazeaux,  1  Paige  39;  Brown  v.  Rickelts.  2  Johns. Ch. 
425;  Jackson  v.  Stiles,  1  Cow.  134,  135  n. 

The   time  and   manner  of  service  is  fixed  by  the 

rules.     After    the  notice  has  been  served   the   party 

making  the  service  should  prepare  an  affidavit  setting 

forth  the  time  and  manner  of  service  to  be   used  in 

case  the  opposite  party  does  not  appear  to  oppose  the 

motion. 


EQUITY     PLEADING     AND    I'RACTICE.  169 

It  is  the  practice  of  the  court  when  served  motions 
are  to  be  made  to  hear  ex  parte  motions  and  those 
which  are  not  opposed  first.  When  a  motion  is 
opposed  it  is  the  usual  practice  for  the  party  making 
the  motion,  to  first  read  the  notice  and  the  affidavits, 
if  any,  in  its  support,  and  then  for  the  opposing  party 
to  read  any  opposing  affidavits,  after  which  the  mov- 
ing party  opens  and  closes  the  argument.  The  deci- 
sions of  the  court  may  be  rendered  at  the  hearing  or 
the  motion  may  be  taken  under  consideration  and  the 
verdict  rendered  at  a  subsequent  sitting  of  the  court. 

The  court  will  not  upon  motion  make  an  order 
which  will  decide  the  principal  point  in  the  case, 
except  upon  consent  of  all  the  parties  affected  by  it. 
For  instance  if  the  bill  is  filed  to  enforce  the  specific 
performance  of  a  contract,  and  the  only  question  in 
dispute  is  the  title  of  the  vender,  the  contract  being 
admitted  by  the  answer,  the  court  will  upon 
motion  direct  a  reference  to  a  master  to  enquire  into 
the  title,  but  the  court  will  not  upon  motion  before 
the  hearing  enquire  into  any  other  objection. 

Like  v.  Beresford,  3  Bro.  C.  C.  366;  Moss  v.  Mathews,  3  Ves. 
279. 


170  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE   XIV. 


PETITIONS. 

Petitions  are  entitled  in  the  court  and  cause  and 
addressed  in  the  same  manner  as  a  bill,  when  they  are 
made  in  a  cause  already  pending. 

The  petition  should  briefly  and  clearly  set  forth  the 
particulars  of  the  case  and  conclude  with  praying  the 
court  to  grant  the  order  desired  "  or  such  other  and 
further  relief  as  may  be  agreeable  to  equity  and  good 
conscience."  The  petition  must  be  signed  and  sworn 
to  by  the  petitioner  and  also  signed  by  the  counsel. 

Matter  of  Christie,  5  Paige  242. 

When  a  person  not  a  party  to  the  original  bill  has 
an  interest  by  way  of  title,  lien  or  otherwise  in  the 
property  which  forms  the  subject-matter  of  the  suit, 
and  such  interest  is  liable  to  be  affected  by  the  pro- 
ceedings, he  may  by  petition  apply  to  the  court  for 
leave  to  intervene  for  the  protection  of  his  rights,  and 
such  leave  will  be  granted  when  the  cause  exists. 

When  leave  is  granted  the  party  must  forthwith,  or 
within  such  time  as  the  court  determines,  file  his  peti- 
tion in  the  cause  setting  forth  his  rights  and  praying 
for  the  relief  sought,  and  give  notice  of  the  filing 
thereof  to  the  other  parties  to  the  cause. 

Freeman  v.  Howe,  24  How.  450;  Stewart  v.  Durham,  115  U.S. 
61 ;  Gumbel  v.  Pitkin,  124  U.  S.  131-143. 


EQUITY    PLEADING    AND    PRACTICE.  171 

Petitions  are  noticed,  and  heard  in  the  same  man- 
ner as  motions. 

ORDERS. 

Orders  are  either  common,  special  or  by  consent. 

A  common  order  is  one  that  the  party  is  entitled  as 
of  course  and  is  made  without  notice  to  the  opposite 
party. 

A  special  order  is  one  made  by  the  court  upon 
special  application,  either  ex  parte  or  upon   notice. 

An  order  by  consent  is  6ne  made  upon  stipulation 
of  the  parties  or  their  solicitors. 

All  common  orders  and  orders  by  consent  of  the 
parties,  may  be  entered  in  the  common  rule  book  in 
the  register's  office,  at  the  peril  of  the  party  taking 
such  order.  The  day  on  which  the  order  is  entered 
must  be  noted  in  the  entry.  All  special  orders  made 
by  the  court  must  be  entered  in  the  record  of  the  pro- 
ceedings of  the  court.  When  an  order  is  entered  by 
consent,  the  consent  must  be  in  writing  signed  by  the 
parties  or  their  solicitors  and  filed  in  the  cause.        , 

Hammond  v.  Place,  Har.  Ch.  438;  Crone  v.  Angel],  14  Mich. 
339;  Mich.  Rules  24. 

Orders  for  injunctions,  and  all  other  special  orders, 

must    be    entered    with    the    register    before    process 

issues. 

Hoffman  v.  Tread  well,  5  Paige  82;  Skinner  v.  DaytOD,  2 
Johns.  Ch.  226. 

It  frequently  happens  that  the  entry  of  a  common 

order  is  not  made  at  the  proper  time.     In  such  a  case, 

if  no  great  length  of  time  has  intervened,  a  motion  of 


172  KQUTTY    PLEADING    AND    PRACTICE. 

cause  may  be   made  to   the  court  to  enter  the  order 
nunc  pro  tunc:  but  after  a  considerable  length  of 
time,  there  ought  to  be  notice  of  the  motion. 
Williamson  v.  Henshaw,  1  Dick.  129. 

Neither  party  can  have  any  benefit  from  a  decision 
of  the  court  until  the  order  thereon  is  drawn  up  and 
perfected.  When  the  order  granted  is  special  in  its 
provisions  the  party  in  whose  favor  it  is  granted 
should  submit  a  copy  to  the  adverse  party  that  he 
may  submit  amendments  thereto  if  he  desired.  The 
draft  and  the  amendments  are  then  given  to  the  reg- 
ister that  the  order  may  be  settled  by  him  and 
entered.  If  the  register  is  in  doubt  as  to  the  decision 
of  the  court,  he  is,  in  such  a  case,  to  apply  to  the 
court  to  settle  the  order. 

Whitney  v.  Belden,  4  Paige  140;  Earl  of  Fingal  v.  Blake,  3 
Molloy  50. 

SERVICE    OF    ORDERS. 

Not  all  orders  need  be  served,  and  whether  or  not 
an  order  must  be  served  depends  usually  upon  the 
form  of  the  order.  Special  orders  obtained  ex  parte, 
usually  provide  that  the  act  designated  shall  be  per- 
formed by  the  opposite  part}7  within  the  time  specified 
after  service  of  the  order.  But  where  a  special  order 
is  obtained  upon  notice  the  order  usually  provides 
that  the  act  shall  be  performed  within  the  time  desig- 
nated after  entry  of  the  order.  The  reason  for  this 
distinction  is  that  in  the  first  instance  the  opposite 
party  has  no  personal   knowledge  of  the  order  until 


EQUITY    PLEADING    AND    PRACTICE.  173 

lie  is  notified,  and  in  the  later  case  he  has  such  notice, 
having  had  notice  of  the  motion  for  the  order. 

But  in  all  cases  as  we  have  seen,  where  it  is  intended 
to  bring  the  party  into  contempt  for  not  complying 
with  the  order,  notice  must  he  served  upon  him  per- 
sonally. The  service  in  such  ease  is  made  in  the 
same  manner  as  notice  of  a  decree,  by  delivering  to 
him  a  copy  of  the  order  and  at  the  same  time  show- 
ing him  a  certified  copy  of  the  original  order  under 
the  seal  of  the  court. 

Ex  parts  Gwynne,  12  Ves.  380;  Cooper  282;  Laton  v.  Seaman, 
9  Paige  609;  Young  v.  Goodson,  2  Russ.  255. 

When  the  party  has  appeared  by  solicitor,  and  it  is 
not  desired  to  bring  him  into  contempt,  service  of 
notice,  when  notice  is  necessary,  upon  the  solicitor  is 
sufficient. 

Stafford  v.  Brown,  4  Paige,  360-362. 

ENFORCING     ORDERS. 

It  is  sometimes  provided  by  statute  that  orders  for 
the  payment  of  money  may  be  enforced  by  means  of 
an  execution  running  against  the  property  of  the 
defendant.  At  common  law  orders  oen»e.  in  general, 
enforced  by  process  of  contempt.  Upon  motion,  and 
proof  that  an  order  had  been  personally  served,  for 
the  payment  of  costs  for  instance,  and  that  the  order 
had  not  been  obeyed,  attachment  issued  and  the  defend- 
ant was  committed  to  prison  for  contempt. 
Danl.  Chr.  P.  1454. 


174  EQUITY    PLEADING    AND    PRACTICE. 

MODIFYING    AND    DISCHARGING    ORDERS. 

It  is  a  general  rule  that  every  order  made  in  the 
progress  of  a  cause,  may  for  cause  shown,  be  modi- 
fied or  received  at  any  time  before  the  final  disposi- 
tion of  the  suit. 

Ashe  v.  Moore,  2  Mer.  383;  Fanning  v.  Dunham,  4  Johns.  Ch. 
35;  Isnaid  v.  Cazeaux,  1  Paige  39. 

An  order  will  not  be  vacated,  however,  except  to 

permit  the   party    applying  to  secure  rights  that  are 

meritorious.     If  he  simply  desires  to  delay  a  cause,  or 

take  advantage  of  some  technical  defence  or  objection, 

the  court  will  allow  the  order  to  stand  although  the 

party  has  excused  himself  from  all  fault. 

Champlin  v.  Mayor  of  N.  Y.,  3  Paige  573;  Townsend  v. 
Townsend,  2  Paige  413;  Hunt  v.  Wallis,  6  Paige  371. 

INJUNCTIONS. 

It  is  very  frequently  necessary  for  a  court  of  equity 
to  restrain  a  party  from  doing  some  particular  act  in 
order  to  prevent  irreparable  injury  to  another,  or  to 
maintain  the  statu  quo  pending  the  determination  of 
the  legal  rights  of  the  parties  to  the  subject-matter  in 
litigation.  This  object  is  accomplished  by  the  writ  of 
injunction,  a  writ  of  the  greatest  importance  and  of 
very  frequent  use  especially  in  this  country  during 
the  past  half  century.  We  can  do  no  more  than 
merely  to  indicate  the  existence  and  purpose  of  the 
writ,  and  refer  the  the  student  to  the  exhaustive  trea- 
ties on  the  subject  by  Dr.  High. 

A  writ  of  injunction  is  a  judicial  process  acting  in 


EQUITY  PLEADING  AND  PRACTICE.        175 

personam  requiring  the  party  to  whom  it  is  directed  to 
do  or  to  refrain  from  doing  some  act  therein  specific- 
ally described.  It  is  used  both  for  the  enforcement  of 
a  right  and  the  prevention  of  a  wrong,  but  it  must  be 
an  actual  right  or  a  positive  wrong,  and  the  withhold- 
ing of  the  right  or  the  doing  of  the  wrong  must  work 
a  positive  injury  to  the  person  complaining,  or  the 
court  will  not  interfere. 

McDonogh  v.  Calloway,  7  Rob.  La.  442;  Goodrich  v.  Moore,  2 
Minn.  49. 

Injunctions    are    either   mandatory,    commanding 

something  to  be  done,  or  preventive,  forbidding  the 

doing    of     something.     A  mandatory    injunction    is 

seldom  issued  and  then  only  upon  the  final  hearing. 

Robinson  v.  Byram.l  Bro.  C.  C.  588;  Gale  v.  Abbott,8  Jur.  N.  S. 
987;  Worthington  v.  Green,  1  Md.  Ch.  97;  Rogers  v.  Railroad,  5 
C.  E.  Green,  379. 

With  reference  to  their  duration  injunctions  are 
either  interlocutory  or  perpetual.  Interlocutor}'  in- 
junctions are  issued  at  any  time  during  the  progress 
of  the  suit,  usually  at  the  filing  of  the  bill,  to  continue 
until  the  coming  in  of  the  answer,  or  the  hearing,  or 
the  further  order  of  the  court.  A  perpetual  injunc- 
tion is  never  granted  except  at  the  final  hearing  and  is 
usually  a  part  of  the  decree. 
Chapman  v.  Harrison.  4  Bland  336. 

The  sole  object  of  an  interlocutory  injunction  is  to 
preserve  the  present  situation  of  the  parties,  and 
therefore  it  will  go  no  further  than  is  necessary  to 
preserve   all  the   rights    in    issue   between    them    in 


17f»  EQUITY    PLEADING    AND    PRACTICE. 

statu  quo.     They   are  divided   into  two  elasses,   com- 
mon and  special. 

A  common  injunction  is  one  that  issues  to  aid  the 
court  in  granting  the  ultimate  relief  asked,  which  is 
something  different  from  the  injunction  itself,  while  a 
special  injunction  is  issued  to  prevent  irreparable 
injury  and  the  obtainingof  which  is  the  sole  or  prin- 
cipal object  and  purpose  of  the  suit. 

Purnell  v.  Daniel,  Sired.  Eq.  9;  Troy  v.  Norman,  2  Jones 
Eq.  318;  Peterson  v.  Mathis,  3  Jones  Eq.  31. 

An  injunction  becomes  operative  from  the  time  the 

party  to  whom  it  is  directed  has  actual  notice.     It  is 

not  necessary  that   he   should  be  actually  served  with 

the  writ  and  therefore  it   may  be  served  outside  the 

jurisdiction  of  the  court. 

Ramsdall  v.  Craighill,  9  Ohio  197;  Little  v.  Price,  1  Md.  Ch. 
182;  Milne  v.  Van  Buskerk,  9  Iowa  558;  Osborne  v.  Tennant,  14 
Ves.  136. 

A  perpetual  injunction  is  one  that  is  issued  under  a 
final  decree  as  an  interlocutory  injunction  which  is 
made  perpetual  by  the  final  decree.  By  its  terms  the 
defendant  is  forever  inhibited  from  doing  certain  acts, 
or  making  certain  specific  claims  therein  set  forth, 
which  would  be  contrary  to  equity  and  good  con- 
science. Such  an  injunction  will  issue  whenever  it  is 
necessary  to  protect  the  rights  of  the  complainant. 

Bushnell  v.  Hartford,  4  Johns.  Ch.  301;  Caruthers  v.  Harts- 
field.  3  Yerg.  356;  Kenson  v.  Kenson,  1  Bibb.  184. 

Injunctions  in  this  state  may  be  granted  by  a  circuit 
court  commissioner. 
Mich.  Rule  112;  see  also  17,  21,  23, 109. 


EQUITY    PLEADING    AND    PBACTOCE.  177 

Special  injunctions  are  not  granted    in  the  United 

States  Court  except  upon  notice  to  the  opposite  party, 

and  they  continue  in  force  until  the  next  term  of  the 

court,  or  until  the  further  order  of  the  court. 

U.  S.  Rule  55.  Revised  St.  §§  718,  719,  720;  Parker  v.  Judges, 
12  Wheaton561. 

WBIT    OF    NE    EXEAT. 

A  writ  of  ne  exeat  is  the  process  of  the  court  issuing 
under  its  seal  to  prevent  a  person  who  is  a  party  to  a 
suit  from  leaving  the  jurisdiction  of  the  court.  It  is 
resorted  to  for  the  purpose  of  compelling  a  defendant 
to  give  bail  conditioned  that  he  will  do  and  perforin 
the  decree  of  the  court. 

Gilbert  v.  Colt,  Hopk.  496;  De  Rivafiuoli  v.  Consetti,  4  Paige, 
264;  Gleason  v.  Bisby,  1  Clarke,  551. 

The  statutes  of  the  United  States  provide  that  when 
a  suit  in  equity  is  commenced,  and  satisfactory  proof 
is  made  to  the  circuit  court,  or  to  the  circuit  justice 
or  judge,  that  the  defendant  designs  quickly  to  depart 
from  the  United  States  ;  that  there  is  due  from  him 
a  sum  certain  or  capable  of  reduction  to  a  certainty  ; 
that  complainant  has  no  sufficient  legal  redress,  and 
that  irreparable  injury  or  a  denial  of  justice  will  be 
caused  to  complainant  if  the  defendant  so  departs, 
such  court  or  judge  may  order  the  issuance  of  a  writ 
of  ne  exeat,  upon  which  the  marshal  arrests  the  defend- 
ant and  keeps  him  in  custody,  unless  he  gives  security 
to  abide  the  order  and  decree  of  the  court. 
Revised  Statutes  §  717;  U.  S.  Rule  21. 

The  writ  may  be  applied  for  at  any  stage  of   the 
12 


178  EQUITY    PLEADING    AND    PltACTICE. 

proceedings  after,  but  not  before,  the  filing  of  the  bill 

of  complaint. 

Ex  pr.  Brurnker,  3  P.  Wms.  312:  Dunham  v.  Jackson,  1  Paige 
629. 

The  application  for  the  writ  may  be  made  ex  parte. 

The  application  is  founded   upon  affidavit  or  petition, 

and,  unlike   the    writ  of  injunction,  it  need  not   be 

prayed   for  in   the  bill.     The  writ  may  be  allowed 

by  the  same  officers  who  are  authorized  to  allow  writs 

of  injunction,  and  the  officer  making  the  allowance 

directs  in  what  amount  the  defendant  shall  give  bail. 

Elliott  v.  Sinclair,  Jac.  545;  Gleason  v.  Bisby,  1  Clarke  551; 
Brehm  v.  Wood,  1  Turner  &  Russ.  332;  McNauiara  v.  Dvvyer, 
7  Pa'ge  239. 

The  writ  commands  the  sheriff  to  have  the  defend- 
ant personally  to  come  before  him  and  give  a  bond  in 
the  penal  sum  endorsed  thereon,  that  he  will  not  go, 
or  attempt  to  go,  beyond  the  jurisdiction  of  the  court 
— at  common  law  beyond  the  four  seas — and  in 
default  of  his  giving  such  bond  that  he  commit  him  to 
prison. 

Gibert  v.  Colt,  1  Hopk.  500;  Rice  v.  Hale,  5  Cash.  233;  Mich. 
Rule  17. 

KKOEIVEKS. 

A  receiver  is  a  suitable  person  appointed  to  take 
charge  of  property  which  is  involved  in  the  suit,  when 
for  any  reason,  the  court  regards  the  parties  to  the 
suit  not  to  be  the  proper  persons  to  have  the  custody 
or  management  of  such  property.  The  appointment 
of  a  receiver  is  discretionary  with  the  court.     When 


EQUITY    PLEADING    AND    PK ACTIO E.  170 

appointed  he  is  regarded  as  an  officer  acting  under 
the  orders  of  the  court.  The  power  of  appointment 
is  usually  called  into  action  either  to  prevent  fraud  or 
save  property  in  litigation  from  material  injury. 

In  re  Receivers'  Globe  Ins.  Co,  G  Paige  102;  Baker  v.  Barkies, 
42  111.  79;  Vorhill  v.  Hynson,  26  Mil.  83,  92;  Mich.  Rules,  104, 
106,  107,  108;  U.  S.  C.  C.  Rules  8,  9,  11. 

When  the  application  for  a  receiver  is  made  during 
the  pendency  of  the  suit  and  before  a  decree,  there 
must  be  a  foundation  laid  for  the  application  in  the 
bill,  but  the  bill  need  not  contain  a  prayer  for  a 
receiver.  The  application  is  made  upon  motion, 
notice  of  which  must  be  served  upon  the  opposite 
party,  unless  he  has  absconded  or  has  concealed  him- 
self to  avoid  service. 

Dowling  v.  Hudson,  14  Beav.  423,  424;  Pitcher  v.  Hilliar,  2 
Dick.  580. 


180  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE   XV. 


PRODUCTION    OF    PAPERS. 

It  is  the  practice  of  the  court  of  chancery  to  require 
the  defendant  to  produce  any  papers  in  his  posses- 
sion relevant  to  the  matters  in  question,  which  the 
complainant  of  right  ought  to  have  the  privilege  of 
examining.  It  is  the  complainant's  privilege  to  apply 
for  the  production  of  such  papers  as  a  part  of  his 
general  right  of  discovery. 

Warrick  v.  Queen's  College  L.  R.  3  Eq.  683;  Att'y-Genl.  v. 
Thompson,  8  Hare  106. 

When  the  complainant  has  books,  papers  or  other 
documents  in  his  possession,  material  for  the  defend- 
ant's defence,  the  defendant  was  required  at  common 
law  to  file  a  cross  bill  by  which  means  he  obtained  the 
same  right  for  production  of  papers  as  the  complainant 
had  under  his  bill. 

Kell^v.  Erkfnrri  5  Paige  548. --J^nni  tip-  v.  §nijik^3  Johns  Ch. 
|09. 

When  a  bill  is  filed  for  the  purpose  of  obtaining 
a  partnership  accounting,  and  the  partnership  books 
are  in  the  hands  of  one  of  the  partners,  the  court  upon 
application  will  direct  such  books  to  be  placed  in  the 
hands  of  an  officer  of  the  court  for  the  purpose  of 
allowing  the  other  partner  to  inspect  them. 

Kelly  v.  Eckford,  5  Paige  548 


EQUITY    PLEADING    AND    PRACTICE.  181 

To  obtain  an  order  for  the  production  of  papers  or 
books,  application  is  made  to  the  court  by  special  mo- 
tion and  the  bill  or  affidavit  made  to  sustain  the 
motion  that  the  production  of  the  papers  or  books  are 
necessary  to  enable  the  party  making  the  application 
to  prosecute  or  defend  the  suit. 

ABATEMENT    AND    REVIVOR. 

Abatement  of  a  suit  in  equity  is  the  effect  produced 
by  the  happening  of  some  event  whereby  the  further 
progress  of  the  cause  is  temporarily  or  permanently 
suspended. 

Hoxiev.  Carr,  1  Sumner  173. 

The  abatement  may  be  due  to  some  event  whereby 
the  interest  of  one  of  the  parties  becomes  extinguished, 
for  instance,  when  joint  tenants  as  such  are  parties 
and  one  of  them  dies,  in  such  a  case  the  abatement  is 
said  to  be  as  to  a  party;  or,  the  abatement  may  be  due 
to  the  transfer  of  the  interest  of  one  of  the  parties  to  a 
third  person  ;  for  instance,  when  upon  the  death  of 
one  of  the  parties,  his  interest  is  vested  in  heirs 
or  devisees,  in  such  case  there  is  an  abatement  as  to  the 
suit. 

Leggettv.  Dubois,  2  Paige  211,  212;  Barbour  Cb.  Pr.  675. 

In  the  first  instance  there  is  no  abatement  as  to  the 
surviving  parties,  and  the  court  will  on  the  motion  of 
either  of  the  parties,  order  the  cause  to  proceed  between 
such  survivors.  But  in  the  other  case  there  is  no 
longer  the  proper  persons  before  the  court  against  or 


1^0  EQUITY    PLEADING    AND    PRACTICE. 

by  whom  proceedings  can  be  lutd  and  the  suit  must 
therefore  be  revived. 

Leggett  v.  Dubois,  2  Paige  211,  213. 

When  there  is  an  abatement  of  the  suit  by  the  death 
or  bankruptcy,  for  instance,  of  the  complainant,  no 
further  proceedings  can  be  had,  as  a  general  rule,  until 
this  defect  has  been  cured,  and  if  any  proceedings  are 
had,  they  will  be  set  aside  as  irregular. 

Insurance  Co.  v.  Slee,  2  Paige  36) ;  Canhone  v.  Vincent,  8  Sim. 
277. 

The  proceedings  are  merely  suspended  by  the  abate- 
ment and  those  already  had  in  the  cause  are  not  an- 
nulled thereby.  If  a  party  has  been  imprisoned  for 
contempt,  abatement  of  the  suit  does  not  discharge 
him  from  custody,  neither  is  a  receiver  discharged  for 
that  reason. 

Dan.  Ch.Pr.  225;  1  Hogan  174. 

And  the  court  will  sometimes  permit  necessary  pro- 
ceedings to  be  had  pending  abatement.  Thus  orders 
will  be  made  for  the  preservation  of  property,  and 
proceedings  had  to  punish  a  party  for  breach  of  an 
injunction. 

Washington  Ins.  Co.  v.  Slee,  2  Paige  365,  368;  Hawley  v, 
Bennet,  4  Paige  163.  .  • 


In  many  of  the  states  the  statutes  provide  that  suits 
may  be  revived  upon  petition.  These  statutory  pro- 
ceedings are  usually  confined  to  cases  where  the  suit 
abates  by  the  death  of  a  party,  the  statute  substituting 


EQUITY    PLEADING    AND    PRACTICE.  183 

a  petition  for  a  bill  of  revivor.  When  the  abatement 
is  one  that  can  be  remedied  under  the  statute,  the 
statutory  proceedings  are  usually  resorted  to  as  being 
simpler  and  more  expeditions,  but  a  party  is  not  pro- 
hibited from  resorting  to  a  bill  of  revivor  even  in 
those  cases  when  the  statute  has  given  ample  relief  by 
petition. 

The  statute  is  necessarily  confined  to  those  cases  in 
which  there  can  be  no  legal  controversy  with  reference 
to  the  right  of  a  part}7  to  revive  the  suit  in  his  favor 
or  against  whom  it  may  be  revived;  in  other  words, 
to  those  cases  where,  at  common  law,  an  abatement 
could  be  remedied  by  a  bill  of  revivor.  It  is  laid 
down  as  the  rule  that  a  bill  of  revivor  may  be  filed 
whenever  by  death  of  one  of  the  parties  his  interest 
vests  as  a  matter  of  law  in  some  other  person,  so  that 
the  only  question  for  the  court  to  determine  is  the 
question  whether  or  not  such  person  is  the  one  desig- 
nated by  the  law. 

Story  Eq.  PI.  §364;  Freematee  v.  Markhous,  2  J.  J.  Marsh. 
Ky.  303;  Boynton  v.  Boynton,  1  Foster  246. 

But  when  the  party  against  whom  or  in  whose  be- 
half the  suit  is  sought  to  be  revived,  is  not  designated 
by  the  statute  as  the  person  who  represents  the  orig- 
inal party  to  the  bill,  but  his  representative  character 
depends  upon  some  question  of  fact  an  original  bill  in 
the  nature  of  a  bill  of  revivor  and  supplement  must 
be  filed. 

Douglass  v.  Sherman.  2  Paige  358,  360,  361 ;  Monteith  v.  Taylor, 
9  Ves.  615;  Mendhomv.  Robinson,  1  My.  &  K.  217. 


184  EQUITY    PLEADING    AND    PRACTICE. 

The  reason  for  the  above  rules,  is,  that  in  the  later 
class  of  cases,  the  title  depending  upon  a  question  of 
fact,  it  is  necessary  to  put  the  question  of  title  in  issue 
that  it  may  be  litigated. 

SUPPLEMENTAL     BILLS. 

When  the  bill  becomes  defective  by  some  event  oc- 
curring after  it  is  filed  and  too  late  to  be  cured  by 
amendment;  or  when  by  an  event  subsequent  to  the 
filing  of  the  bill  a  new  interest  in  the  matter  in  litiga- 
tion is  claimed  by  one  of  the  parties  to  the  suit,  or  a 
new  party  claims,  otherwise  than  by  mere  operation 
of  law,  the  interest  which  belonged  to  some  other 
party  at  the  commencement  of  the  suit,  a  supple- 
mental bill  is  the  proper  remedy  to  cure  the  defect. 

Jones  v.  Jones,  3  Atk.  110;  Dormer  v.  Fortescue,  3  Atk.  124, 
133;  Humphreys  v.  Humphreys,  3  P.  Wms.  349;  Pelkington  v. 
Moss,  2Madd.  240,  466;  Knight  v.  Mathews,  1  Madd.  566,  304; 
Usborn  v.  Baker,  2  Madd.  37J;  539. 

It  is  filed  on  leave,  to  supply  some  defect  in  the 
structure  of  the  original  bill,  caused  by  the  happening 
of  some  event  after  the  filing  of  the  original  bill. 

Kennedy  v.  Georgia  St.  Bank,  8  How.  U.  S.  586;  Winn  v. 
Albert,  2  Md.  Ch.  42. 

It  is  not  proper  to  file  a  supplemental  bill  to  put  in 
issue  new  matters  which  can  be  added  to  the  bill  by 
way  of  amendment.  Therefore  if  there  has  been  no 
change  in  the  parties  and  the  bill  is  defective  from 
the  complainant  having  omitted  to  make  certain  alle- 
gations, though  ignorance  of  fact,  and  no  proofs  have 


EQUITY    PLEADING    AND    PRACTICE.  185 

been  taken,  the  complainant  should  apply  to  the  court 

for  leave  to  amend,  and  if  he  has  filed  a  replication  to 

withdraw  his  replication. 

Dias  v.  Merle,  4  Paige  259;  Colclough  v.  Evans,  4  Sim.  76; 
Stafford  v.  Hewlett,  1  Paige  200;  Chandler  v.  Pettit,  1  Paige  168. 

If  proofs  have  been  taken  he  must  in  that  event  ask 
leave  to  file  a  supplemental  bill. 

Dias  v.  Merle,  4  Paige  259. 

Not  all  matters,  however,  that  have  ariseu  since  the 

commencement  of  suit  can  be  put  in  issue  even  by  a 

supplemental  bill.     If  the  complainant  had  no  cause 

of  action  when  the  bill  was  filed  he  cannot  cure  the 

defect  by  putting  in  issue  matters   which  have  since 

occurred.     He  will  not,  for  instance,  be  permitted  to 

support  a  bad  title  held  by  him   at  the  time  the  bill 

was   filed,  by  subsequently  acquiring  a  good  one  and 

setting  up  such  acquired  title  by  a  supplemental  bill. 

Tonkin  v.  Litbbridge,  Coop.  R.  43;  Davidson  v.  Foley,  3  Bro. 
C.  C.  598;  Pritchard  v.  Draper,  1  Russ.  &  My.  191. 

This  rule  does  not,  however,  bar  a  complainant  who 
has  a  good  inchoate  title,  from  showing  by  a  supple- 
mental bill  that  such  inchoate  title  has  because  vested 
through  some  formal  act. 

Mutter  v.  Chanvoe,  5  Russ.  42;  Sadler  v.  Lovett,  1  Molloy  162. 

A  supplemental  bill  cannot  be  filed  without  leave  of 
the  court  first  obtained.  The  motion  for  an  order 
giving  permission  need  not  be  noticed  however,  un- 
less an  injunction  is  prayed  for  in  the  supplemental  bill. 

Eager  v.  Price,  2  Paige  333;  Lawrence  v.  Bolton,  3  Paige  294; 
Winn  v.  Albert,  2  Md.  Ch.  42. 


180  EQUITY    PLEADING    ANT)    PRACTICE. 

If  an  injunction  is  prayed  for  and  the  defendant 
has  appeared,  a  copy  of  the  proposed  bill  is  served 
upon  him  with  a  notice  of  the  motion,  together  with 
copies  of  the  affidavits  or  other  proofs  upon  which  the 
motion  is  based. 
Eager  v.  Price,  2  Paige  333;  Winn  v.  Albert,  2  Md.  Ch.  42. 

CKOSS  BILL. 

Formerly  a  defendant  could  not  pray  for  any  relief 

in  his  answer,  except  to  be  dismissed   the  court   with 

his  reasonable  costs  and  charges,  and  therefore,  if  he 

sought  any  relief,  he  must  do  so  by  a  bill  of  his  ownr 

filed  in  the  same  cause  and  designated  a  cross  bill. 

Morgan  v.  Tipton,  3  McLean   339;    Cullom   v.  Erwin,  4  Ala. 
452. 

Under  the  practice  in  this  state  and  in  some  other 
states  the  defendant  can  in  his  answer  ask  for  affirma- 
tive relief  thus  in  many  instances  doing  away  with  the 
necessity  of  a  cross  bill.  It  is  still  however  desirable, 
and  in  some  cases,  necessary.  It  frequently  happens 
that  a  complete  decree  cannot  be  made  under  the  orig- 
inal bill,  due  to  the  fact  that  the  conflicting  rights  of 
the  defendants  are  not  put  in  issue,  or  that  some  of 
the  defendants  are  entitled  to  affirmative  relief,  and 
that  a  cross  bill  or  cross  bills  are  necessary  to  com- 
pletely bring  the  whole  matter  in  dispute  before  the 
court.  In  such  a  case  it  becomes  necessary  for  one  or 
more  of  the  defendants  to  file  a  bill  against  the  com- 
plainant, and  if  they  are  necessary  parties,  against  one 
or  more  of  the  defendants. 


EQUITY  PLEADING  AND  PRACTICE.        187 

White  v.  Buloid,  2  Paige  164;  Anglo-Egyptian  Co.  L.  R.  1 
Ch.  Ap.  103;  Mich.  Rule  123. 

A  Gross  bill  is  regarded  as  a  defence  and  the  original 
and  cross  bills  are  considered  together  as  constituting 
one  suit. 

Field  v.  Schieffelin,  7  Johns.  Ch.  249-252;  Cartwright  v.  Clark, 
4  Mete.  104. 

Formerly  no  person  could  be  made  a  party  to  a  cross 
bill  who  was  not  a  party  to  the  original  bill,  but  now 
in  many  of  the  states  new  parties  when  necessary  may 
be  thus  brought  in. 

Blodgett  v.  Hobart,  18  Vt.  414;  Brandon  Mfg.  Co.  v.  Prime, 
14  Blatch.  371;  Kennedy  v.  Kennedy,  66  111.  190;  Cobb  v.  Bax- 
ter, 1  Tenn.  Cb.  405. 

As  to  the  proper  practice  in  this  state  under  rule 
123  which  permits  the  defendant  to  ask  for  affirma- 
tive relief  in  his  answer  see 

McGuire  v.  Buck,  Mich.  April,  1888;  Barkley  v.  Mack,  60  Mich. 
591. 

The  proper  time  for  filing  a  cross  bill  is  at  the  time 
the  answer  is  put  in.  If  it  is  not  then  filed  and  no  suffi- 
cient excuse  is  given  for  the  delay,  the  proceedings  in 
the  original  suit  will  not  be  stayed. 

White  v.  Buloid,  2  Paige  164;  Josey  v.  Rogers,  13  Ga.  473; 
Irving  v.  DeKay,  10  Paige  319. 

The  cross  bill  should  be  confined  to  the  matters 
stated  in  the  original  bill  and  must  not  introduce  new 
and  distinct  matters  not  embraced  therein.  If  it 
should  it  would  be  an  original  bill  as  to  such  matters. 
It  must  not  contradict  the  allegations  made  by   the 


188  EQUITY    PLEADING    AND    PRACTICE. 

defendant  in  his  answer  to  the  bill,  and  it  is  proper,  if 
not  necessary,  that  the  answer  should  set  ont  all  the 
allegations  contained  in  the  bill. 

Harkley  v.  Mack,  60  Mich.  591;  Irving  v.  DeKay,  10  Paige 
319,  322;  Hudson  v.  Hudson,  3  Rand.  117. 

The  original  bill  must  be  answered  before  the  com- 
plainant in  the  original  bill  will  be  compelled  to 
answer  the  cross  bill. 

After  both  causes  are  ready  for  a  hearing  either 
upon  the  pleadings,  or  pleadings  and  proofs,  either 
party  may  obtain  an  order  ex  parte  to  have  both 
causes  heard  together. 

White  v.  Buloid,  2  Paige  164;  U.  8.  Rule  72;    Mich.  Rule  20. 


EQUITY    PLEADING    AND    PRACTICE.  189 


LECTURE   XVI. 


BILLS    OF    INTERPLEADER. 

When  a  person  is  in  possession  of  a  specific  chattel, 
or  a  definite  sum  of  money,  which  two  or  more  per- 
sons claim  adversely  to  each  other,  but  in  the  same 
right,  or  privity  of  estate,  he  may  exhibit  a  bill  of 
interpleader  against  such  adverse  claimants  and  thus 
relieve  himself  from  the  liability  incident  to  deliver- 
ing the  article,  or  the  money  to  the  wrong  claimant, 
by  compelling  them  to  litigate  their  adverse  claims 
between  each  other. 

Child  v.  Mann,  L.  R.  3  Eq.  805-806,  808;  Bedell  v.  Hoffman, 
2  Paige  199;  Green  v.  Mumford,  4  R.  I.  313;  Farley  v.  Blood,  30 
N.  H.  354;  Horton  v.  Baptist  Church  &c,  34  Vt.  309. 

To  entitle  a  party  to  file  a  bill  of  interpleader  he 
must  be  a  mere  stakeholder,  having,  himself,  no  inter- 
est in  the  property  in  controversy,  so  that  when  the 
court  decrees  an  interpleader,  he  may  step  out  of  the 
case  altogether. 

Lincoln  v.  R.  &  B.  R.  R.  Co.,  24  Vt.  639;  Angell  v.  Hadden, 
15  Ves.  244;  Bowditch  v.  Soltyk,  99  Mass.  136. 

Strictly  speaking  the  complainant  does  not  ask  any 
relief  against  either  of  the  defendants,  but  simply  the 
aid  of  the  court  in  determining  to  whom  the  property 
of  right  belongs,  that  he  may  deliver  it  to  such  right- 
ful person  and  be  relieved  against  the  claims  of  the 
other. 


190  EQUITY    PLEADING    AND    PRACTICE. 

Bedell  v.  Hoffman,  2  Paige  199;  Badeau  v.  Rogers,  2  Paige 
209;  Lazin  v.  Van  Saun,  2  Green  Cb.  325. 

There  must  be  privity  of   some   sort   between  the 

parties,  such  as  privity  of  estate,   title,  or  contract, 

and  the  claims  must  be  all  of  the  same  nature.     If  the 

adverse  claimants  assert  rights  under  adverse  titles,  and 

have  claims  differing  in  their   nature,  the  bill  cannot 

be  maintained.      Thus  when   two  assessing  districts 

have  assessed  the  same  person  for  the  same  property 

in  each  district,  claiming  to  act  under  the  statute,  the 

owner  of  the  property  may  file  a  bill  of  interpleader 

against  the  two  corporations,  or  when    a    tenant  owes 

rent  to    his   landlord,  and  two  persons  claim  through 

the  same  title  to  be  such  landlord,  the  tenant  may  file 

a  bill  against  both,  but  if  in  the  latter  case  the  claim  of 

one  was  based  upon  a  title  paramount  to  the  other,  as 

when  one  claims  under  the  original  title,  and  the  other 

under  a  tax  title,  the  bill  may  not  be  maintained. 

M.  &  H.  R.  R.  Co.v.Clute,  4  Paige  384;  Thompson  v.  Ebbitts, 
Hopk.  272;  Stanley  v.  Sidney,  14  M.  &  W.  800;  Story  Eq.  PL 
§  239. 

The  claims  of  the  several  defendants  must  not  only 
be  substantially  the  same  in  their  nature,  but  this  must 
appear  in  the  bill.  The  bill  must  also  show  that  the 
defendants  claim  an  interest  in  the  whole  subject- 
matter  of  the  suit  and  be  so  framed  that  the  decree 
may  embrace  the  whole  of  it. 

Hoggart  v.  Cutts,  1  Cr.  &  P.  197,  205;  Crawford  v.  Fisher,  1 
Hare  43G,  440. 

If  the  matter  in   dispute  is  money  in  the  hands  of 


EQUFTY    PLEADING    AND    PRACTICE.  191 

the  complainant  he  should  offer  in  his  bill  to  bring 
it  into  court,  to  enable  the  court  to  direct  that  to  be 
done  upon  the  application  of  either  of  the  other  parties. 
Shaw  v.  Coster,  8  Paige  339. 

As  a  general  rule  a  sheriff,  who  has  seized  property 
under  an  execution  which  is  claimed  by  a  party  other 
than  the  defendant  named  in  the  writ,  cannot  file  a 
bill  of  interpleader  making  such  adverse  claimants 
parties.  If,  however,  there  are  conflicting  equitable 
claims,  or  claims  due  to  some  event  happening  after 
the  levy,  for  instance  the  bankruptcy  of  the  execution 
defendant,  he  may  file  a  bill. 

Tufton  v.  Hardinge,  6  Jur.  N.  S.  116;  Child  v.  Mann,  L.  R.  3 

Eq.  805,  807. 

There  are  conflicting  claims  sometimes  to  funds  in 
the  sheriff's  hands  arising  from  the  sale  of  property 
on  several  executions  running  against  the  same  person 
and  in  favor  of  divers  persons.  In  such  a  case  it  is 
held  in  Arkansas  that  the  sheriff  may  file  a  bill  of 
interpleader. 

Lawson  v.  Jordan,  19  Ark.  297. 

But  as  a  general  rule  this  cannot  be  done. 

Shaw  v.  Coster,  8  Paige  339;  Parker  v.  Barker,  42  N.  H.  78; 
Nash  v.  Smith,  6  Conn.  421. 

In  theory  the  bill  is  filed  solely  for  the  benefit  of 
the  complainant  to  relieve  him  from  vexatious  litiga- 
tion and  liability  to  pay  the  same  amount  twice,  and 
the  court  will  not  permit  the  bill  to  be  filed  if  there 
is  collusion  between  the  complainant  and  one  of  the 


192  EQUITY    PLEADING    AND    PRACTICE. 

parties.  The  complainant  must  therefore  file  with 
the  bill  an  affidavit  that  there  is  no  collusion  between 
him  and  either  of  the  parties  ;  and  if  there  are  several 
complainants  they  must  all  join  in  the  affidavit. 

Atkinson  v.  Monks,  1  Cow.  091;  Farley  v.  Blood,  30  N.  H. 
354,  361;  Story  Eq.  PI.  §§  291,  297;  Shaw  v.  Coster,  8  Paige 
339. 

In  the  bill  of  interpleader  the  complainant  sets 
forth  fully  the  subject-matter  of  the  controversy;  that 
the  property  is  in  his  hands  ;  that  he  has  no  interest  in 
it ;  that  the  defendants  named  claim  the  property  and 
the  nature  of  their  claim,  but  not  their  title.  This 
part  of  the  bill  must  be  drawn  so  as  to  show  that  the 
complainant  has  a  right  to  compel  the  defendants  to 
interplead.  The  complainant  must  also  aver,  that  he 
is  ignorant,  or  in  doubt,  as  to  which  of  the  parties  are 
entitled  to  the  property.  The  bill  prays  that  the 
defendants  may  interplead,  so  that  the  court  may 
determine  to  whom  the  property  belongs.  It  usually 
prays  also,  if  the  matter  of  controversy  is  a  money 
demand,  that  the  complainant  may  pay  the  money 
into  court.  If  a  suit  at  law  has  been  commenced  by 
either,  or  both  the  defendants,  or  threatened  by  either 
or  both,  the  bill  also  prays,  that  the  defendants  may 
be  enjoined  from  further  proceedings  against  the  com- 
plainant at  law. 

Union  Bank  v.  Kerr,  2  Mil.  Cu.  460;  French  v.  Robechard,  50 
Vt.  43. 


EQUITY    PLEADING    AND    PJRACTICE.  193 

BILLS    TO    PE11PETUATE    TESTIMONY. 

Any  person,  who  would,  under  the  allegations  con- 
tained in  his  bill,  become  entitled,  upon  the  happening 
of  some  future  event,  to  an  estate,  or  interest  in  any 
property,  real  or  personal,  the  right  to  which  cannot 
by  him  be  legally  investigated,  by  being  brought  to 
trial  before  the  happening  of  such  event,  may  main- 
tain a  bill  to  perpetuate  the  testimony  material  for 
establishing  such  estate,  or  interest. 

Lord  Dursley  v.  Fitzhardinge,  6  Ves.  251-259;  Allen  v.  Allen, 
15  Ves.  129-135. 

The  interest  which  the  complainant  has,  must  be  a 
present  interest  and  not  a  mere  contingent  interest. 
But  if  it  is  a  present  interest  it  is  wholly  immaterial 
how  minute  it  may  be,  or  how  remote  the  possibility 
may  be,  of  the  happening* of  the  event  upon  which  it  is 
to  be  enjoyed. 

Lord  Dursley  v.  Fitzhardinge,  6  Ves.  251-259;  Allen  v.  Allen, 
15  Ves.  129-135. 

I  The  bill  must  set  forth  the  matter  touching  which  the 
complainant  desires  to  take  testimony.  It  must  show 
that  he  has  an  actual  and  not  a  contingent  interest,  and 
that  the  facts  to  which  the  proposed  testimony  relates 
cannot  be  investigated  immediately  in  a  court  of  law 
or  equity,  or  that  before  the  facts  can  be  adjudicated 
upon,  the  evidence  of  such  witness,  is  in  danger  of 
being  lost  by  his  death  or  departure  from  the  state. 
In  the  latter  case  the  bill  must  be  accompanied  witli 
13 


194  EQUITY    PLEADING    AND    PRACTICE. 

affidavit  setting  forth  the  danger  of  the  loss  of  such 
testimony. 

Phillip  v.  Carew,  1  P.  Wins.  110,  117. 

When  a  suit  at  law  can  be  commenced  immediately, 
a  suit  must  be  actually  commenced  before  a  bill  to 
perpetuate  testimony  will  be  entertained. 

Angell  v.  Angell,  1  Sim.  &  Stu.  83,  93. 

It  would  seem  that  the  bill  is  demurrable  unless  it 
shows  that  the  complainant's  interest  is  actual,  and  not 
capable  of  being  barred  by  the  defendant ;  that  the 
interest  cannot  be  investigated  immediately,  and  that 
the  defendant  has  an  interest  to  contest  the  complain- 
ant's claim. 

Allen  v.  Allen,  15  Ves.  129,  135;  Larkins  v.  Ayleworth,  1  Vern, 
105;  Dursley  v.  Fitzhardinge,  6  Ves.  262;  Ellice  v.  Roupelle,  32 
Beav.  308. 

The  defence  to  a  bill  to  perpetuate  testimony  is  by 
demurrer,  plea  or  answer,  as  in  other  cases.  The 
cause,  however,  is  never  brought  to  a  hearing.  After 
the  cause  is  at  issue  a  commission  issues  for  the  exam- 
ination of  witnesses. 

Vaughan  v.  Fitzgerald,  1  Sell.  &  Lef.  316. 

At  common  law  the  court  would  not  permit  the 
testimony  to  be  published  except  in  support  of  a  suit  or 
action,  and  not  then,  unless  the  witness,  whose  testi- 
mony had  been  taken,  was  dead,  or  sick,  or  so  aged, 
or  infirm,  that  he  could  not  be  examined  in  the  cause. 

Morrison  v.  Arnold,  19  Ves.  669;  Jackson  v.  Rice,  3  Wend. 
180;  Jackson  v.  Perkins,  2  Wend.  308. 


EQUITY    PLEADING    AND    PRACTICE.  195 

To  obtain  the  order  of  publication,  a  notice  of  the 
motion  must  be  served,  which  must  be  supported  by 
an  affidavit,  that  the  testimony  is  necessary  to  be 
made  use  of  in  the  complainant's  behalf,  that  the  wit- 
nesses are  dead  or  so  sick,  aged  or  infirm,  that  they 
cannot  travel  to  give  evidence  in  the  cause,  or  that 
they  are  out  of  the  state.  Upon  such  a  showing  the 
order  of  publication  will  be  made.  If  a  portion  only 
of  the  testimony  taken  is  to  be  used  the  order  will  des- 
ignate what  testimony  is  to  be  published. 

Bills  to  perpetuate  testimony  are  seldom  resorted  to 
at  the  present  time,  the  statute  in  many  of  the  states 
having  provided  a  cheaper  and  more  expeditious 
method  of  accomplishing  the  same  purpose. 


196  EQUITY    PLEADING    AND    PRACTICE. 


LECTURE  XVII. 


BILL    TO    EXAMINE    WITNESSES    DE  BENE    ESSE. 

This  species  of  bills  bears  a  close  analogy  to  bills  to 
perpetuate  testimony.  But  the  two  differ  widely, 
standing  upon  distinct  considerations.  A  bill  to  per- 
petuate testimony  cannot  be  maintained  except  in 
cases  where  no  suit  can  then  be  commenced  in  which 
the  desired  testimony  can  be  taken.  Bills  to  take  tes- 
timony de  hene  esse  are  on  the  other  hand  sustained 
only  in  aid  of  a  suit  already  pending. 

Story  Eq.  PL  §250;  Angell  v.  Angell,  1  S.  &  S.  83. 

The  object  of  the  bill  is  to  take  the  testimony  of 
witnesses  to  be  used  in  a  pending  action  at  law  in  case 
where  delay  may  result  in  the  loss  of  such  testimony, 
and  the  bill  may  be  filed  by  the  plaintiff  or  defendant 
in  such  suit  at  law. 

The  danger  of  the  loss  of  a  witness's  testimony 
may  arise  from  the  age  of  the  witness  or  his  state 
of  health,  or  from  the  fact  that  he  is  the  only  witness 
i>y  whom  a  given  fact  can  be  proved.  In  this  later 
case  the  court,  in  view  of  the  uncertainty  of  life,  will 
admit  the  testimony  of  such  a  witness  to  be  taken 
although  he  is  neither  sick,  infirm  or  aged. 

Shirley  v.  Earl  of  Fenus,  1  P.  Wms,  97;  Pearson  v.   Ward,  2 
Dick.  648. 


EQUITY    PLEADING    AND    PRACTICE.  197 

As  a  general  rule  a  witness  is  not  treated  as  being 
aged  unless  he  is  seventy  years  of  age. 

Fitzhugh  v.  Lee,  Amb.  65 

But  if  a  witness  is  infirm,  or  in  ill  health  to  an 
extent  to  endanger  life,  or  to  prevent  his  attendance 
at  the  trial,  the  court  will  permit  his  testimony  to  be 
taken,  no  matter  what  his  age  may  be. 

Phillips  v.  Carew,  1  P.  Wms.  117. 

If  a  witness  is  going  out  of  the  jurisdiction  of  the 
court  his  testimony  also  may  be  taken.  At  common 
law  this  was  the  case,  although  the  witness  was  going 
from  one  division  of  the  kingdom  to  another,  as 
from  England  to  Scotland. 

Botts  v.  Verelst,  2  Dick.  454. 

In  framing  a  bill  to  examine  witnesses  de  bene  esse, 
care  must  be  taken  to  allege  all  the  material  facts 
upon  which  the  right  to  maintain  the  bill  can  be 
maintained,  that  is,  that  the  witness  whose  testimony 
you  desire  to  take  is  aged,  infirm,  about  to  leave  the 
jurisdiction  of  the  court,  or  is  the  only  witness  by 
whom  you  ean  prove  a  material  fact,  as  the  case  may 
be.  The  bill  should  be  supported  also  by  an  affi- 
davit showing  the  circumstances  by  which  the  evi- 
dence intended  to  be  taken  may  be  otherwise  lost. 

Angell  v.  Angell,  IS.  &  S.  83,  91;  Phillips  v.  Carew.  1  P 
Wms.  117;  Story  Eq.  PI.  §257. 

The  affidavit  must  be  positive  as  to  the  material 
facts,  and  not  rest  upon  belief  merely.  Thus  where 
a  bill    was    filed    to    take  the  testimony  of  a  witness 


198  EQUITY    PLEADING    AND    PRACTICE. 

alleged  to  be  the  only  witness,  and  the  affidavit  alleged 
that  he  was  the  only  witness  in  the  belief  of  the  party, 
it  was  held  insufficient,  and  that  the  affidavit  should 
have  stated  positively  that  lie  was  the  only  witness 
who  knew  the  fact. 

Rowe  v.  ,  13  Ves.  260. 

Testimony  taken  de  bene  esse  is  only  valid  in  the 
cause  in  which  it  is  taken,  and  against  those  who  are 
parties  to  such  cause.  In  other  respects  the  rules 
applicable  to  bills  to  perpetuate  testimony  apply  to 
these  bills. 

There  are  several  other  bills  which  we  do  not 
notice  for  the  reason  that  their  form  depends  largel}7 
upon  local  statutes,  for  instance  bills  for  divorce,  bills 
filed  by  judgment  creditors  against  their  debtors,  bills 
for  the  partition  of  land,  bills  for  the  foreclosure  of 
mortgages,  etc.,  etc. 

Having  now  gone  over  the  various  steps  taken  in 
the  progress  of  a  suit  in  equity  we  will  close  tin's 
short  synopsis  of  equity  pleadings  and  practice  with 
Lord  Redesdale  analysis  of  the  different  kinds  of 
bills.  He  says:  "The  several  kinds  of  lulls  have 
been  usually  considered  as  capable  of  being  arranged 
under  the  general  heads:  I.  Original  bills,  which 
relate  to  some  matters  not  before  litigated  in  the 
court  by  the  same  parties  standing  in  the  same  inter- 
ests. II.  Bills  not  original  which  are  either  an  addi- 
tion  to,  or  a  continuance  of  an  original  bill,  or  both. 
III.   Bills  which,  though  occasioned  by  or  seeking  the 


EQUITY    PLEADING    AND    Pf&AOTICE.  L99 

benefit  of  a  former  bill,  or  of  a  decision  made  upon 
it,  or  attempting  to  obtain  a  reversal  of  a  decision,  are 
not  considered  as  a  continuance  of  a  former  bill  but  in 
the  nature  of  original  bills.  And  though  this  arrange- 
ment is  not  perhaps  the  most  perfect,  yet,  as  it  is 
nearly  just,  and  has  been  very  generally  adopted  in 
argument,  and  in  the  books  of  reports  and  of  practice, 
it  will  be  convenient  to  treat  the  different  kinds  of 
bills  with  reference  to  it. 

I.  A  bill  may  pray  relief  against  an  injury  suffered, 
or  only  seek  the  assistance  of  the  court  to  enable  the 
defendant  to  defend  himself  against  a  possible  future 
injury,  or  to  support  or  defend  a  suit  in  a  court  of  or- 
dinary jurisdiction.  Original  bills  have,  therefore, 
been  again  divided  into  bills  praying  relief,  and  bills 
not  praying  relief.  An  original  bill  praying  relief 
may  be:  1.  A  bill  praying  the  order  or  decree  of  the 
court  touching  some  right  claimed  by  the  person  ex- 
hibiting the  bill,  in  opposition  to  some  right  claimed 
by  the  person  against  whom  the  bill  is  exhibited.  2. 
A  bill  of  interpleader,  when  the  person  exhibiting  the 
bill  claims  no  right  in  opposition  to  the  rights  claimed 
by  the  persons  against  whom  the  bill  is  exhibited,  but 
prays  the  decree  of  the  court  touching  the  rights  of 
those  persons  for  the  safety  of  the  persons  exhibiting 
the  bill.  3.  A  bill  praying  the  writ  of  certiorari  to 
remove  a  cause  from  an  inferior  court  of  equity.  An 
original  bill  not  praying  relief  may  be  :  1.  A  bill  to 
perpetuate  the  testimony  of  witnesses.  2.  A  bill  for 
the  discovery  of  facts  resting  within  the  knowledge 


200  EQUITY    PLEADING    AND    PRACTICE. 

of  the  person  against  whom  the  bill  is  exhibited,  or 
of  deeds,  writings,  or  other  things  in  his  custody  or 
power. 

II.  A  suit  imperfect  in  its  frame,  or  becomes  so 
by  accident,  before  its  end  has  been  obtained,  may,  in 
many  cases,  be  rendered  perfect  by  a  new  bill,  which 
is  not  considered  as  an  original  bill,  but  merely  as  an 
addition  to  or  continuance  of  the  former  bill,  or  both. 
A  bill  of  this  kind  may  be:  1.  A  supplemental  bill, 
which  is  merely  an  additional  to  the  original.  2.  A 
bill  of  revivor,  which  is  a  continuance  of  the  original 
bill,  when  by  death  some  party  to  it  has  become  inca- 
pable of  prosecuting  or  defending  a  suit,  or  a  female 
plaintiff  has  by  marriage  incapacitated  herself  from 
suing  alone.  3.  A  bill  both  of  revivor  and  supple- 
ment which  continues  a  suit  upon  an  abatement  and 
supplies  defects  arisen  from  some  event  subsequent  to 
the  institution  of  the  suit. 

III.  Bills  for  the  purpose  of  cross  litigation  of 
matters  already  depending  before  the  court,  of  con- 
troverting, suspending,  avoiding  or  carrying  into  exe- 
cution a  judgment  of  the  court,  or  obtaining  the  ben- 
efit of  a  suit  which  the  plaintiff  is  not  entitled  to  add 
to  or  continue  for  the  purpose  of  supplying  any  de- 
fects in  it,  have  been  generally  considered  under  the 
head  of  bills  in  the  nature  of  original  bills,  though 
occasioned  by,  or  seeking  the  benefit  of  former  bills; 
and  may  be  :  1.  A  cross-bill,  exhibited  by  the  defend- 
ant in  a  former  bill,  against  the  plaintiff  in  the  same 
bill,  touching  some   matter  in   litigation   in    the  first 


EQUITY    PLEADING    ANT)    PRACTICE.  203 

bill.  2.  A  bill  of  review  to  examine  and  reverse 
a  decree  made  upon  a  former  bill  and  signed  by  the 
person  holding  the  great  seal,  and  enrolled,  whereby 
it  has  become  a  record  of  the  court.  3.  A  bill  in  the 
nature  of  a  bill  of  review,  brought  by  a  person  not 
bound  by  the  former  decree.  4.  A  bill  to  impeach  a 
decree  on  the  ground  of  fraud.  5.  A  bill  to  suspend 
the  operation  of  a  decree  on  special  circumstances,  or 
to  avoid  it  on  the  ground  of  matter  arisen  subsequent 
to  it.  6.  A  bill  to  carry  a  decree  made  in  a  former 
suit  into  execution.  7.  A  bill  in  the  nature  of  a  bill 
of  revivor,  to  obtain  the  benefit  of  a  suit  after  abate- 
ment in  certain  cases  which  do  not  admit  of  the 
coutin nance  of  the  original  bill.  S.  A  bill  in  the 
nature  of  a  supplemental  bill,  to  obtain  the  benefit  of 
a  suit,  either  after  abatement  in  other  cases  which  do 
not  admit  of  a  continuance  of  the  original  bill,  or  after 
the  suit  is  become  defective  without  abatement,  in 
cases  which  do  not  admit  of  a  supplemental  bill  to 
supply  that  defect. 


INDEX   TO   LECTURES. 


Page 

Abatement  and  revivor,  bills  of 181 

Accounting — production  of  papers  in 180 

Admissions — by  agreement  and  of  record 143 

made  in  answer 145 

made  by  agreement 148 

Appearance  of  defendant  how  entered 88 

Answer 128 

consists  of  two  parts 129 

certainty  required  in 130 

form  of 132 

divisions  of 133 

must  be  signed  by  defendant  and  by  counsel. . . .  133 

copy  of  served  presumed  correct 134 

of  corporation,  bow  put  in 134 

effect  of  when  answer  under  oath  waived 135 

under  oath  waived  cannot  be  excepted  to  for  in- 
sufficiency   136 

amending 137 

supplemental 138 

when  may  be  taken  off  file 139 

joinder  of  several  defences  in 140 

when   accompanied   by  demurrer  or   plea,    how 

entitled 140 

evidence  for  complainant,  when  not  under  oath..  145 

under  oath,  evidence  in  the  cause 146 

Bill — in  equity,  frame  of 64 

address  of 68 

must  show  that  the  court  has  jurisdiction 68,  75 

stating  part  to  contain  what 70 

facts,  how  stated  in 71,  72 

when  must  be  sworn  to 81 

must  be  signed  by  counsel 82 

[202] 


INDEX    TO    LECTURES.  202« 

Page 

Bill — evidence  for  defendant 145 

dismissing,  effect  of 156 

to  examine  witnesses  de  bene  esse,  object  of 196 

of  revivor,  when  may  be  filed 183 

cross  bill,  when  may  be  filed 186 

Bills — in  equity,  classification  of 198 

original 198 

supplemental 199 

to  examine  witnesses  de  bene  esse 196 

supplemental,  may  be  filed  when 185 

Books  and  papers — production  of 180 

application  for 181 

Charging  part  of  bill  not  necessary 77 

Certaintjr — degrees  of 65 

required  in  equity  pleading 66 

required  both  as  to  matter  and  averment! 67 

Confederating  part  of  bill  may  be  omitted 76 

Cross  bill  — when  may  be  filed 186 

regarded  as  a  part  of  defendant's  suit 187 

and  original  to  be  heard  together 188 

when  to  be  filed 188 

need  not  be   answered   until    after  answer  to 

original  bill 188 

Default — how  entered 85 

when  defendant  entitled  to  notice  of  proceedings 

after  default 86 

Decree — definition  of 158 

interlocutory 158 

final 158 

form  of 160 

settling  manner  of 159 

mistake  in  how  corrected 161 

final  record,  when  enrolled 161 

how  enrolled 161 

enforcement  of 162 

pro  confesso 85 

Defences — kinds  of 91 

Demurrer — when  proper  defence 92 

admits  what 93 


202&  INDEX    TO    LECTURES. 

Page 

Demurrer — may  be  to  relief  or  discovery 94 

to  jurisdiction 94 

to  the  person 95 

to  substance  of  bill 96 

to  matters  of  form 98 

grounds  of  as  to  discovery 99 

form  of 101 

general 102 

general  when  permissible 103 

speaking  demurrer ■ 105 

ore  tenus 105 

overruled  by  plea  when 106 

overruled  by  answer  when 106 

must  be  signed  by  counsel 106 

effect  of  overruling 107 

effect  of  sustaining 107 

second  may  be  filed  when 108 

advantage  of  at  hearing 108 

Disclaimer — when  defendant  may  file 90 

Documents — how  set  forth  in  bill 75 

Facts — allegations   of   when    to    be    stated    positively  and 

when  upon  information  and  belief 71 

Feigned  issues 157 

Guardian  ad  litem  when  and  how  appointed 56 

Interpleader — bills  of 189 

when  bill  of  may  be  filed 189 

bill  of  what  to  contain 192 

Interest — in  suit  and  subject-matter 57 

Injunction — writ  of 174 

mandatory  and  preventative 175 

Impertinent  matter — defined 88 

exception  for 88 

Interlocutory  proceedings  165 

Interrogatories — when  specific,  not  necessary 78 

when  discovery  sought  must  be  added. . .  79 

Motions— special  and  of  course 166 

Multifariousness 59 

not  determined  by  the  prayer 62 

how  taken  advantage  of 63 


INDEX   TO    LECTURES.  202o' 

Page 

Ne  exeat — writ  of 177 

Orders — how  classified 171 

how  entered 171 

how  served 172 

how  enforced 173 

modifying  and  discharging 174 

Parties  to  bill — who  must  be  made 53,  56 

when    suit    will    proceed  when   all  proper 

parties  are  not  made  parties 55 

proper  and  necessary  parties 57 

Papers — production  of 180 

application  for  production  of 181 

Pleadings  and  practice  defined G4 

Practice,  pleadings  and,  defined 64 

Petitions — definition  of 170 

Perpetuate  testimony — bills  to 193 

must  contain  what 194 

Process — prayer  for 81 

must  contain  names  of  defendants 81 

Pleas — how  classified 109 

pure,  negative  and  anomalous 116,  117 

anomalous 120 

when  to  be  supported  by  answer 120 

different  grounds  of  plea 121 

form  of 122 

replication  to 123 

effect  of  allowing 124 

effect  of  overruling 125 

Relief — prayer  for 79 

special  and  general 80 

Revivor— bill  of  when  may  be  filed 182,  183 

Receivers — when  may  be  appointed 178 

Replication — to  answer 143 

to  plea 123 

Scandalous  matter — defined 89 

exceptions  for 89 

Supplemental  bills 184 

may  be  filed  when 185 

Substituted  service — how  made 85 


2026?  INDEX    TO    LECTURES. 

Pag© 

Subpoena 82 

how  served 83 

when  may  be  served 84 

return  of  service,  how  made 84 

substituted  service 85 

Testimony — how  taken 148 


GENERAL  EQUITY  RULES 

PRESCRIBED    BY 

THE  SUPREME  COURT  OF  THE  UNITED  STATES. 


PRELIMINARY   REGULATIONS. 

1 

The  Circuit  Courts,  as  courts  of  equity,  shall  be  deemed  al- 
ways open  for  the  purpose  'of  filing  bills,  answers  and  other 
pleadings,  for  issuing  and  returning  mesne  and  final  process  and 
commissions,  and  for  making  and  directing  all  interlocutory 
motions,  orders,  rules  and  other  proceedings,  preparatory  to  the 
hearing  of  all  causes  upon  their  merits. 
Ewing  v.  Blight,  1  Phila.  57G. 

2 

The  Clerk's  office  shall   be  open,  and  the  Clerk  shall  be  in 

attendance  therein  on  the  first  Monday  of  every  month,  for  the 

purpose  of   receiving,   entering  and  disposing  of    all  motions, 

rules,    orders,  and  other  proceedings,   which   are  grantable  of 

course  and  applied  for,  or  had  by  the  parties,  or  their  solicitors, 

in  all  causes  pending  in  equity,  in  pursuance  of  the  rules  hereby 

prescribed. 

3 

Any  judge  of  the  circuit  court,  as  well  in  vacation  as  in  term, 
may,  at  chambers,  or  on  the  rule  days,  at  the  clerk's  office,  make 
and  direct  all  such  interlocutory  orders,  rules,  and  other  proceed- 
ings, preparatory  to  the  hearing  of  all  causes  upon  their  merits, 
in  the  same  manner  and  with  the  same  effect  as  the  circuit  court 
could  make  and  direct  the  same  in  term,  reasonable  notice  of 
the  application  therefor  being  first  given  to  the  adverse  party, 
or  his  solicitor,  to  appear  and  show  cause  to  the  contrary  at  the 
next  rule  day  thereafter,  unless  some  other  time  is  assigned  by 
the  "judge  for  the  hearing. 

3  McLean,  503. 

4 

All  motions,  rules,  orders  and   other  proceedings   made   and 

directed  at  chambers,  or  on  rule  days  at  the  clerk's  office,  whether 

[2031 


204  GENERAL    EQUITY    KULES. 

special  or  of  course,  shall  be  entered  by  the  clerk  in  an  order 
book,  to  be  kept  in  the  clerk's  office,  on  the  day  when  they  are 
made  and  directed;  which  book  shall  be  open,  at  all  office  hours, 
to  the  free  inspection  of  the  parties  in  any  suit  in  equity,  and 
their  solicitors.  And  except  in  cases  where  pergonal  or  other 
notice  is  specially  required  or  directed,  such  entry  in  the  order 
book  shall  be  deemed  sufficient  notice  to  the  parties  and  their 
solicitors,  without  further  service  thereof,  of  all  orders,  rules, 
acts,  notices,  and  other  proceedings  entered  in  such  order  book, 
touching  any  and  all  the  matters  in  the  suits  to  and  in  which 
they  are  parties  and  solicitors.  And  notice  to  the  solicitors  shall 
be  deemed  notice  to  the  parties  for  whom  they  appear  and  whom 
they  represent,  in  all  cases  where  personal  notice  on  the  parties 
is  not  otherwise  specially  required.  Where  the  solicitors  for  all 
the  parties  in  a  suit  reside  in  or  near  the  same  town  or  city,  the 
judges  of  the  circuit  court,  may,  by  rule,  abridge  the  time  for 
notice  of  rules,  orders,  or  other  proceedings,  not  requiring  per- 
sonal service  on  the  parties,  in  their  discretion. 

U.  S.  v.  Parrott,  1  McAll.  457;  McLean  v.  Lafayette  Bank, 
3  McLean  503;  New  by  v.  Or.  Cent.  R.  Co.,  1  Saw.  63; 
Bronson  v.  Kensey,  3  McLean  180;  Halderman  v.  Haider- 
man,  Hemp.  407;  Wilkins  v.  Jordan,  3  Wash.  226;  Bennett 
v.  Hoefner,  17  Blatch.  341;  Chicago,  etc.,  Co.,  1  Woolw.  63. 

5 

All  motions  and  applications  in  the  clerk's  office  for  the  issuing 
of  mesne  process  and  final  process  to  enforce  and  execute  de- 
crees; for  filing  bills,  answers,  plea3,  demurrers,  and  other 
pleadings;  for  making  amendments  to  bills  and  answers;  for 
taking  bills  pro  confesso;  for  filing  exceptions,  and  for  other 
proceedings  in  the  clerk's  office,  which  do  not,  by  the  rules  here- 
inafter prescribed,  require  any  allowance  or  order  of  the  court, 
or  of  any  judge  thereof,  shall  be  deemed  motions  and  applications, 
grantable  of  course  by  the  clerk  of  the  court.  But  the  same 
may  be  suspended,  or  altered,  or  rescinded,  by  any  judge  of  the 
court,  upon  special  cause  shown. 

Poultney  v.  Lafayette,  13  Peters,  472. 

6 

All  motions  for  rules  or  orders  and  other  proceedings,  which 
are  not  grantable  of  course,  or  without  notice,  shall,  unless  a  dif- 
ferent time  be  assigned  by  the  judge  of  the  court,  be  made  on  a 


U.  S.  SUPREME    COURT.  205 

rule  day,  and  entered  in  the  order  book,  and  shall  be  heard  at 
the  rule  day  next  after  that  on  which  the  motion  is  made.  And 
if  the  adverse  party,  or  his  solicitor,  shall  not  then  appear,  or 
shall  not  show  good  cause  against  the  same,  the  motion  may  be 
heard  by  any  judge  of  the  court  ex  parte,  and  granted,  as  if  not 
objected  to,  or  refused,  in  his  discretion. 
U.  S.  v.  Parrott,  1  McAll.  477. 


7 
The  process  of  subpoena  shall  constitute  the  proper  mesne  pro- 
cess in  all  suits  in  equity,  in  the  first  instance,  to  require  the 
defendant  to  appear  and  answer  the  exigency  of  the  bill;  and 
unless  otherwise  provided  in  these  rules,  or  specially  ordered  by 
the  circuit  court,  a  writ  of  attachment,  and,  if  the  defendant 
can  not  be  found,  a  writ  of  sequestration,  or  a  writ  of  assistance 
to  enforce  a  delivery  of  possession,  as  the  case  may  require,  shall 
be  the  proper  process  to  issue  for  the  purpose  of  compelling 
obedience  to  any  interlocutory  or  final  order  or  decree  of  the 
court. 

5  Mass.  35;  R.  S.  sec.  911;  Herndon  v.  Ridgway,  17 
How.  424;  Toland  v.  Sprague,  12  Peters  300;  Nazro  v.  Cra- 
gin,  3  Dill.  474;  Ex  parte  Graham,  3  Wash.  C.  C.  456;  Mid- 
dleton  Paper  Co.  v.  Rock  River  Paper  Co.,  19  Fed.  Rep.  252; 
Crellin  v.  Ely,  13  Fed.  Rep.  420;  Johnson  v.  Waters,  111 
U.  S.  610. 

8 
Final  process  to  execute  any  decree  mar,  if  the  decree  be  solely 
for  the  payment  of  money,  be  by  a  writ  of  execution,  in  the  form 
used  in  the  circuit  court  in  suits  at  common  law  in  actions  of 
assumpsit.  If  the  decree  be  for  the  performance  of  any  specific 
act,  as,  for  example,  for  the  execution  of  a  conveyance  of  land, 
or  the  delivering  up  of  deeds  or  other  documents,  the  decree 
shall,  in  all  cases,  prescribe  the  time  within  which  the  act  shall 
be  done,  of  which  the  defendant  shall  be  bound,  without  further 
service,  to  take  notice;  and  upon  affidavit  of  the  plaintiff,  filed 
in  the  clerk's  office,  that  the  same  has  not  been  complied  with 
within  the  prescribed  time,  the  clerk  shall  issue  a  writ  of  attach- 
ment against  the  delinquent  party,  from  which,  if  attached 
thereon,  he  shall  not  be  discharged,  unless  upon  a  full  compli- 
ance with  the  decree  and  the  payment  of  all  costs,  or  upon  a 
13* 


206  GENERAL  EQUITY  EULES. 

special  order  of  the  court,  or  of  a  judge  thereof,  upon  motion 
and  affidavit,  enlarging  the  time  for  the  performance  thereof.  If 
the  delinquent  party  can  not  be  found,  a  writ  of  sequestration 
shall  issue  against  his  estate,  upon  the  return  of  non  est  inventus, 
to  compel  obedience  to  the  decree. 

R.  S.  sees.  985,  986;  Toland  v.  Sprague,  12  Peters  300; 
Gwin  v.  Breedlove,  2  How.  29;  Griffin  v.  Thompson,  2 
How.  245;  McFarland  v.  Gwin,  3  How.  720. 

9 

When  any  decree  or  order  is  for  the  delivery  of  possession, 
upon  proof  made  by  affidavit  of  a  demand  and  refusal  to  obey 
the  decree  or  order,  the  party  prosecuting  the  same  shall  be  en- 
titled to  a  writ  of  assistance  from  the  clerk  of  the  court. 

Terrell  v.  Allison,  21  Wall.  289;  Pratt  v.  Burr,  5  Biss. 
36;  Thompson  v.  Smith,  1  Dill.  458. 

10 

Every  person  not  being  a  party  in  any  cause,  who  has  obtained 
an  order,  or  in  whose  favor  an  order  shall  have  been  made,  shall 
be  enabled  to  enforce  obedience  to  such  order  by  the  same  pro- 
cess as  if  he  were  a  party  to  the  cause;  and  every  person,  not 
being  a  party  in  any  cause,  against  whom  obedience  to  any  order 
of  the  court  may  be  enforced,  shall  be  liable  to  the  same  process 
for  enforcing  obedience  to  such  order  as  if  he  were  a  party  in 
the  cause. 

SERVICE  OP  PROCESS. 

11 

No  process  of  subpoena  shall  issue  from  the  clerk's  office  in 
any  suit  in  equity,  until  the  bill  is  filed  in  the  office. 

12 

Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process  of 
subpoena  thereon,  as  of  course,  upon  the  application  of  the  plain- 
tiff; which  shall  be  returnable  into  the  clerk's  office  the  next  rule 
day,  or  the  next  rule  day  but  one,  at  the  election  of  the  plaintiff, 
occurring  after  twenty  days  from  the  time  of  the  issuing  thereof. 
At  the  bottom  of  the  subpoena  shall  be  placed  a  memorandum, 
that  the  defendant  is  to  enter  his  appearance  in  the  suit  in  the 
clerk's  office,  on  or  before  the  day  at  which  the  writ  is  returnable; 
otherwise  the  bill  may  be  taken  pro  confesso.  Where  there  is 
more  than  one  defendant,  a  writ  of  subpoena  may,  at  the  election 


U.  8.  SUPREME   COURT.  207 

of  the  plaintiff,  be  sued  out  separately  for  each  defendant,  except 
in  the  case  of  husband  and  wife  defendants,  or  a  joint  subpoena 
against  all  the  defendants. 

Treadwell  v.  Cleveland,  3  McLean  283;  O'Hara  v.  Mac- 
Connell,  93  U.  S.  150. 

13 

The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a  copy 
thereof,  by  the  officer  serving  the  same  to  the  defendant  person- 
alty, or  by  leaving  a  copy  thereof  at  the  dwelling-house  or  usual 
place  of  abode  of  each  defendant,  with  some  adult  person  who 
is  a  member  or  resident  in  the  family. 

Ward  v.  Seabry,  4  Wash.  426;  Ward  v.  Sebrinc,  4  Wash. 
472;  Sawyer  v.  Gill,  3  W.  &  M.  97;  Hyslop  v.  Hoppock,  5 
Ben.  533;  Weiberg  v.  The  St.  Oloff,  2  Pet.  Adm'y  428; 
Segee  v.  Thomas,  3  Blatch.  11:  Robinson  v.  Cathcart,  2  Cr. 
C.  C.  590;  Doe  ex  dem.  v.  Johnston,  2  McLean  323;  K'y 
Silv.  M'g  Co.  v.  Day,  2  Saw.  468;  Hitner  v.  Suckley,  2 
Wash.  465;  Read  v.  Consequa,  4  Wash.  174;  Eckert  v. 
Bauert,  4  Wash.  370;  Parsons  v.  Howard,  2  Woods  1;  Reid 
v.  Rochereau,  2  Woods  145;  Dunn  v.  Clark.  8  Peters  1; 
Lowenstein  v.  Glidewell,  9  Blatch.  324;  pacific  R.  R.  Co. 
v.  Mo.  R'y  Co.,  1  McCrary  647;  Bronson  v.  Keokuk,  2 
Woods  498;  O'Hara  v.  McConnell,  3  Otto  151;  Phoenix  M. 
1.  Co.  v.  Wulf,  9  Biss.  285;  Jobbius  v.  Montague.  5  Ben. 
429;  Gracie  v.  Palmer,  8  Wheat.  299;  Thayer  v.  Wales  5 
Dill.  325;  Young  v.  Montgomery,  etc..  Co.,  2  Woods  607; 
Kibbe  v.  Benson,  17  Wall.  624;  Settlemeier  v.  Sullivan,  97 
U.  S.  444. 

14 

Whenever  any  subpoena  shall  be  returned  not  executed  as  to 
any  defendant,  the  plaintiff  shall  be  entitled  to  another  subpoena, 
toties  quoties,  against  such  defendant,  if  he  shall  require  it,  until 
due  service  is  made. 

15 

The  service  of  all  process,  mesne  and  final,  shall  be  by  the 
marshal  of  the  district,  or  his  deputy,  or  by  some  other  person 
specially  appointed  by  the  court  for  that  purpose,  and  not  other- 
wise. In  the  latter  case,  the  person  serving  the  process  shall 
make  affidavit  thereof. 

Jobbins  v.  Montague,  5  Ben.  428;  U.  S.  v.  Montgomery, 
2  Dall.  335;  Hyman  v.  Chales,  12  Fed.  Rep.  855;  Kennedy 
v.  Brent,  6  Cranchl87;  Wortman  v.  Coj^ningham,  1  Peters 


208  GENERAL  EQUITY  RULES. 

C.  C.  241;  Life  and  F.  Ins  Co.  v.  Adams,  9  Peters  573; 
Harrirnan  v.  Rockaway  B.  P.  Co.,  5  Fed.  Rep.  561;  U.  S. 
v.  Moore,  2  Brock.  317. 

16 
Upon  the  return  of  the  subpoena,  as  served  and  executed  upon 
any  defendant,  the  clerk  shall  enter  the  suit  upon  his  docket  as 
pending  in  the  court,  and  shall  state  the  time  of  the  entry. 

APPEARANCE. 
17 

The  appearance  day  of  the  defendant  shall  be  the  rule  day,  to 
which  the  subpoena  is  made  returnable;  provided  he  has  been 
served  with  the  process  twenty  days  before  that  day;  otherwise, 
his  appearance  day  shall  be  the  next  rule  day  succeeding  the  rule 
day  when  the  process  is  returnable. 

The  appearance  of  the  defendant,  either  personally  or  by  his 
solicitor,  shall  be  entered  in  the  order  book,  on  the  day  thereof, 
by  the  clerk. 

Treadwell  v.  Cleveland,  3  McLean  283;  Poultney  v.  Lafay- 
ette, 12  Peters  472;  Nelson  v.  Moon,  3  McLean  319;  Car- 
rington  v.  Brent,  1  McLean  167;  Gracie  v.  Palmer,  8  Wheat. 
699;  Goodyear  v.  Chaffee,  3  Blatch.  268;  Marye  v.  Strauss, 
5  Fed.  Rep.  494;  Knox  v.  Summers,  3  Crauch  496;  Segee 
v.  Thomas,  3  Blatch.  11;  Jones  v.  Andrews,  10  Wall.  327; 
Dore  v.  Gibbouey,  3  Hughes  382;  Kentucky,  etc.,  Co.  v. 
Day,  2  Sawy.  468;  Virginia,  etc.,  Co.  v.  U.  S.,  Taney  418; 
Shelton  v.  Tiffin,  6  How.  163;  Osborne  v.  U.  S.  Bank,  9 
Wheat.  739;  Buerk  v,  Imhaeuser,  8  Fed.  Rep.  457;  Hale  v. 
Continental  Ins.  Co.,  12  Fed.  Rep.  359;  Graham  v.  Spencer, 
14  Fed.  Rep.  603;  Patterson  v.  U.  S.,  2  Wheat.  222. 

BILLS  TAKEN   PRO   CONPESSO. 
18 

It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall  be 
otherwise  enlarged  for  cause  shown,  by  a  judge  of  the  court, 
upon  motion  for  that  purpose,  to  file  his  plea,  demurrer,  or 
answer  to  the  bill,  in  the  clerk's  office,  on  the  rule  day  next  suc- 
ceeding that  of  entering  his  appearance.  In  default  thereof,  the 
plaintiff  may,  at  his  election,  enter  an  order  (as  of  course)  in  the 
order  book,  that  the  bill  be  taken  pro  confesso;  and  thereupon 
the  cause  shall  be  proceeded  in  ex  parte,  and  the  matter  of  the 
bill  may  be  decreed  by  the  court  at  any  time  after  the  expiration 


I  .   s.  SUPREME    COURT.  209 

of  thirty  days  from  and  after  the  entry  of  said  order,  if  the  same 
can  be  dune  without  an  answer,  and  is  proper  to  be  decreed;  or 
the  plaintiff,  if  he  requires  any  discovery  or  answer  to  enable 
him  to  obtain  a  proper  decree,  shall  be  entitled  to  process  of 
attachment  against  the  defendant  to  compel  an  answer;  and  the 
defendant  shall  not,  when  arrested  upon  such  process,  be  dis- 
charged therefrom,  unless,  upon  filing  his.  answer,  or  otherwise 
complying  with  such  order,  as  the  court,  or  a  judge  thereof,  may 
direct,  as  to  pleading  to  or  fully  answering  the  bill  within  a 
period  to  be  fixed  by  the  court,  or  judge,  and  undertaking  to 
speed  the  cause. 

Amended  7  Otto  VIII;  O'Hara  v.  McConnell,  03  (J.  S. 
150;  Halderman  v.  Qalderman,  Mem}).  407;  Dean  v.  .Mason, 
20  How.  198;  Walz  v.  Brookville  National  Bank,  11  Chi, 
Legal  News  392;  8  Reporter  580. 

19 
When  the  bill  is  takeu  pro  confesso,  the  court  may  proceed  if 
a  decree  any  time  after  the  expiration  of  thirty  days  from  and 
after  the  entry  of  the  order  to  take  the  bill  pro  confesso,  and 
such  decree  rendered  shall  be  absolute,  unless  the  court  shall,  at 
the  same  term,  set  aside  the  same,  or  enlarge  the  time  for  riling 
the  answer,  upon  cause  shown  upon  motion  and  affidavit  of  the 
defendant.  And  no  such  motion  shall  be  granted,  unless  upon 
the  payment  of  the  costs  of  the  plaintiff  in  the  suit  up  to  that 
time,  or  such  part  thereof  as  the  court  shall  deem  reasonable. 
and  unless  the  defendant  shall  undertake  to  file  his  answer  within 
such  time  as  the  court  shall  direct,  and  submit  to  such  other 
terms  as  the  court  shall  direct  for  the  purpose  of  speeding  the 
cause. 

Amended  7  Otto  VIII;  Scott  v.  Blaine,  Bald.  287;  Allen 
v.  Thomas,  1  Cr.  C.  C.  294;  Stewart  v.  Smith,  2  Cr.  C.  C. 
615;  McMicken  v.  Perin,  18  How.  507;  Kemball  v.  Stewart, 
1  McLean  332;  Piatt  v.  Oliver,  2  McLean  281,  283;  Lincoln 
v.  Tower,  2  McLean  487;  Fellows  v.  Hall,  3  McLean  281; 
Cameron  v.  McRoberts,  3  Wheat.  591;  Suydam  v.  Beals,  4 
McLean  12;  Read  v.  Consequa,  4  Wash.  C.  C.  175;  Pendle- 
ton v.  Evan's  Ex'rs,  4  Wash.  C.  C.  336;  Pendleton  v.  Evan's 
Ex'rs,  4  Wash.  C.  C.  336;  Boudinot  v.  Symmes,  Wall.  C.C. 
139;  O'Hara  v.  McConnell.  3  Otto  150;  Bennett  v.  Hoefner, 
17  Blatch.  341;  Blackburn  v.  Selma  R.  Co.,  3  Fed.  Rep.  689; 
Walz  v.  Brookville  Nat'l  Bank,  11  Chi.  Legal  News  392;  8 
Reporter  580. 

14 


210  GENERAL  EQUITY  KULES. 


FKAME  OF  BILLS. 
20 
Every  bill,  in  the  introductory  part  thereof,  shall  contain  the 
name3,  places  of  abode,  and  citizenship  of  all  the  parties, 
plaintiffs  and  defendants,  by  and  against  whom  the  bill  is 
brought.  The  form,  in  substance,  shall  be  as  follows:  "To  the 
Judges  of  the  Circuit  Court  of  the  United  States  for  the  District 

of ,  A.  B.,  of ,  and  a  citizen  of  the  State  of ,  brings 

this,  his  bill,  against  C.  D. ,  of ,  and  a  citizen  of  the  State  of 

,  and  E.  P.,  of ,  and  a  citizen  of  the  State  of .     And 

thereupon,  your  orator  complains,  and  says  that,"  etc. 

Dodge  v.  Perkins,  4  Mason  435;  Jackson  v.  Ashton,  8  Pet 
148;  K'y  Silv.  M'g  Co.  v.  Day,  2  Saw.  468;  Barth  v.  Mc 
Keever,  4  Biss.  206;  Str.  Shark  v.  Lee  Choi  Chum,  1  Saw 
717;  Harrison  v.  Nixon,  9  Peters  483,  505;  Speigle  v.  Mere 
dith,  4  Biss.  120;  Merserole  v.  P.  C.  Union  Co.,  6  Blatch 
356;  National  Bank  v.  Baack,  8  Blatch.  137;  Findlay  v.  U 
S.  Bank,  2  McLean  44;  Vose  v.  Philbrook,  3  Story  336; 
Sterrick  v.  Pagslev,  1  Flippin  350;  U.  S.  v.  Pratt  Coal  Co., 
18  Fed .  Rep.  708." 

21 
The  plaintiff,  in  his  bill,  shall  be  at  liberty  to  omit,  at  his 
option,  the  part  which  is  usually  called  the  common  confederacy 
clause  of  the  bill,  averring  a  confederacy  between  the  defendants 
to  injure  or  defraud  the  plaintiff;  also  what  is  commonty  called 
the  charging  part  of  the  bill,  setting  forth  the  matters  or  excuses, 
which  the  defendant  is  supposed  to  intend  to  set  up  by  wa}r  of 
defence  to  the  bill;  also,  what  is  commonly  called  the  jurisdiction 
clause  of  the  bill,  that  the  acts  complained  of  are  contrary  to 
equity,  and  that  the  defendant  is  without  any  remedy  at  law; 
and  the  bill  shall  not  be  demurrable  therefor.  And  the  plaintiff 
may,  in  the  narrative  or  stating  part  of  the  bill,  state  and  avoid, 
by  counter- averments,  at  his  option,  any  matter  or  thing  which 
.he  supposes  will  be  insisted  upon  by  the  defendant,  by  way  of 
defence  or  excuse  to  the  case  made  by  the  plaintiff  for  relief. 
The  prayer  of  the  bill  shall  ask  the  special  relief  to  which  the 
plaintiff  supposes  himself  entitled,  and  shall  also  contain  a 
prayer  for  general  relief;  and  if  an  injunction,  or  a  writ  of  ne 
exeat  regno,  or  any  other  special  order  pending  the  suit  is  re- 
quired, it  shall  also  be  specially  asked  for. 


U.  8.  SUPREME    COURT.  211 

Perry  v.  Corning,  7  Blatch.  195;  Dunham  v.  Eat.  &  Ham. 
R.  R.  Co.,  1  Bond  492;  Georgia  v.  Braiseford,  2  Dall.  405; 
Taylor  v.  Mercli.  Fire  Ins.  Co.,  9  How.  390;  Spooner  v.  Mc- 
Connell,  1  McLean  337;  Smith  v.  Foxall,  2  Pet.  595;  Union 
Bank  of  Georgetown  v.  Geary,  5  Pet.  99;  Harrison  v.  INixon, 
9  Pet.  483;  Boone  v.  Chiles,  10  Pet.  177;  Walden  v.  Bodley, 
14  Pet.  156;  Hobson  v.  Mc Arthur's  Heirs,  16  Pet.  182; 
Washington  R.  R.  v.  Bradleys,  10  Wall.  299;  Wilson  v. 
Graham,  4  Wash.  53;  Penhallow  v.  Doane,  3  Dall.  86;  Moore 
v.  Mitchell,  2  Woods  483;  Lewis  v,  Shainwald,  7  Saw.  403; 
Poultney  v.  City  of  Lafayette,  3  How.  81;  see  also  Gen.  Eq. 
Rule  23. 

22 

If  any  person,  other  than  those  named  as  defendants  in  the 
bill,  shall  appear  to  be  necessary  or  proper  parties  thereto,  the 
bill  shall  aver  the  reason  why  they  are  not  made  parties,  by 
showing  them  to  be  without  the  jurisdiction  of  the  court,  or 
that  they  cannot  be  joined  without  ousting  the  jurisdiction  of 
the  court  as  to  the  other  parties.  And  as  to  persons  who  are 
without  the  jurisdiction,  and  may  properly  be  made  parties,  the 
bill  may  pray  that  process  may  issue  to  make  them  parties  to  the 
bill,  if  they  should  come  within  the  jurisdiction. 

Abbott  v.  Am.  H'd  Rub.  Co  ,  4  Bl.  C.  C.  489;  Bunce  v. 
Gallagher,  5  Bl.  C.  C.  481;  Barnev  v.  Baltimore  City,  6 
Wall.  280;  Hob  v.  Wilson,  9  Wall. "501;  Tobin  v.  Walkin- 
shaw,  1  McAll.  26. 

23 
The  prayer  for  process  of  subpoena  in  the  bill  shall  contain 
the  names  of  all  the  defendants  named  in  the  introductory  part 
of  the  bill,  aud  if  any  of  them  are  known  to  be  infants,  under 
age,  or  otherwise  under  guardianship,  shall  state  the  fact,  so  that 
the  court  may  take  order  thereon  as  justice  may  require,  upon 
the  return  of  the  process.  If  an  injunction,  or  a  writ  of  ne 
exeat  regno,  or  any  other  special  order  pending  the  suit,  is  asked 
for  in  the  prayer  for  relief,  that  shall  be  sufficient  without  re- 
peating the  same  in  the  prayer  for  process. 

24 

Every  bill  shall  contain  the  signature  of  counsel  annexed  to  it, 

which  shall  be  considered  as  an  affirmation  on  his  part  that,  upon 

the  instructions  given  to  him,  and  the  case  laid  before  him,  there 

is  good  ground  for  the  suit,  in  the  manner  in  which  it  is  framed. 

Roach  v.  Hulings,  5  Cr.  C.  C.  637;  Dwight  v.  Humphreys, 
3  McLean  104:  Stinson  v.  Hildrup,  8  Biss.  376. 


212  GENERAL    EQUITY    RULES. 

25 

In  order  to  prevent  unnecessary  costs  and  expenses,  and  to 
promote  brevity,  succinctness,  and  directness  in  the  allegations 
of  bills  and  answers,  the  regular  taxable  costs  for  every  bill  and 
answer  shall  in  no  case  exceed  the  sum  which  is  allowed  in  the 
State  Court  of  Chancery  in  the  district,  if  any  there  be;  but  if 
there  be  none,  then  if  shall  not  exceed  the  sum  of  three  dollars 
for  every  bill  or  answer. 

SCANDAL  AND    IMPERTINENCE  IN    BILLS. 
26 

Every  bill  shall  be  expressed  in  as  brief  and  succinct  terms  as 
it  reasonably  can  be,  and  shall  contain  no  unnecessary  recitals 
of  deeds,  documents,  contracts,  or  other  instruments,  in  hac 
verba,  or  any  other  impertinent  matter,  or  any  scandalous  matter 
not  relevant  to  the  suit.  If  it  does,  it  may,  on  exceptions,  lie 
referred  to  a  master  by  any  judge  of  the  court  for  impertinence  or 
scandal,  and  if  so  found  by  him,  the  matter  shall  be  expuuged 
at  the  expense  of  the  plaintiff,  and  he  shall  pay  to  the  defendant 
all  his  costs  iu  the  suit  up  to  that  time,  unless  the  court,  or  a 
judge  thereof,  shall  otherwise  order.  If  the  master  shall  report 
that  the  bill  is  not  scandalous  or  impertinent,  the  plaintiff  shall 
be  entitled  to  all  costs  occasioned  by  the  reference. 

Nourse  v.  Allen,  4  Blatch.  376;  Perry  v.  Corning,  7  Blatch. 
195;  Capen  v.  Flesher,  1  Bond  440;  Gaines  v.  Chew,  2  How. 
019;  Oliver  v.  Piatt,  3  How.  333;  McLean  v.  Lafayette  Bank, 
3  McLean  415;  Gier  v.  Gregg,  4  McLean  202;  Griswold  v. 
Hill,  1  Paine  390;  Langdon  v.  Goddard,  3  Story  13;  Wood 
v.  Mann,  1  Sum.  579;  Chapman  v.  School  District,  Deadv 
108. 

27 
No  order  sball  be  made  by  any  judge,  for  referring  any  bill, 
answer,  or  pleading,  or  other  matter,  or  proceeding  depending 
before  the  court  for  scandal  or  impertinence,  unless  exceptions 
are  taken  in  writing,  and  signed  by  counsel,  describing  the  par- 
ticular passages  which  are  considered  to  be  scandalous  or  imper- 
tinent; nor  unless  the  exceptions  shall  be  tiled  on  or  before  the 
next  rule  day  after  the  process  on  the  bill  shall  be  returnable,  or 
after  the  answer  or  pleading  is  filed.  And  such  order,  when 
obtained,  shall  be  considered  as  abandoned,  unless  the  party 
obtaining  the  order  shall,  without  any  unnecessary  delay,  pro- 


U.  S.  SUPREME    COURT.  213 

cure  the  master  to  examine  and  report  for  the  same  on  or  before 
the  next  succeeding  rule  day,  or  the  master  shall  certify  that 
further  time  is  necessary  for  him  to  complete  the  examination. 

Oliver  v.  Piatt,  3  How.  333;  Nelson  v.  Hill,  5  How.  127; 
Surget  v.  Byers,  Hempst.  715;  U.  S.  v.  Sturges,  1  Paine  525; 
Chapman  v.  School  District,  Deady  108. 

AMENDMENTS  OF  BILLS. 

28 

The  plaintiff  shall  be  at  liberty  as  a  matter  of  course,  and 
without  payment  of  costs,  to  amend  his  bill  in  any  matters 
whatsoever,  before  any  copy  has  been  taken  out  of  the  clerk's 
office,  and  in  any  small  matters  afterwards,  such  as  rilling  blanks, 
correcting  errors  of  dates,  misnomer  of  parties,  misdescription 
of  premises,  clerical  errors,  and  generally  in  matters  of  form. 
But  if  he  amend  in  a  material  point  (as  he  may  do  of  course), 
after  a  copy  has  been  so  taken,  before  any  answer  or  plea,  or 
demurrer  to  the  bill,  he  shall  pay  to  the  defendant  the  costs 
occasioned  thereby,  and  shall,  without  delay,  furnish  him  a  fair 
copy  thereof,  free  of  expense,  with  suitable  references  to  the 
place*  where  the  same  are  to  be  inserted.  And  if  the  amend- 
ments are  numerous,  he  shall  furnish,  in  like  manner,  to  the  de- 
fendant, a  copy  of  the  whole  bill,  as  amended;  and  if  there  be 
more  than  one  defendant,  a  copy  shall  be  furnished  to  each  de- 
fendant affected  thereby. 

Capen  v.  Flesher,  1  Bond  440;  Shields  v.  Barrow,  17  How. 
130;  Holmes  v.  Heirs  of  Trout,  1  McLean  1;  Longworth  v. 
Taylor,  1  McLean  514;  Walden  v.  Bodley,  14  >et.  156; 
Peirce  v.  West's  Ex'r,  3  Wash.  354;  Read  v.  Consequa,  4 
Wash.  175;  Goodyear  v.  Bourn,  3  Blatch.  266;  Harrison  v. 
Rowan,  4  Wash.  202;  Fisher  v.  Rutherford,  Bald.  188; 
Hilliard  v.  Brevoort,  4  McLean  25;  Swatzel  v.  Arnold, 
Woolw.  383;  Coghlan  v.  Stetson,  19  Fed.  Rep.  727;  Douglas 
v.  Butler,  6  Fed.  Rep.  228;  Hardin  v.  Boyd,  113  U.  S.  756. 

29 

After  an  answer,  or  plea,  or  demurrer  is  put  in,  and  before 
replication,  the  plaintiff  may,  upon  motion  or  petition,  without 
notice,  obtain  an  order  from  any  judge  of  the  court,  to  amend 
his  bill  on  or  before  the  next  succeeding  rule  day,  upon  payment 
of  costs,  or  without  payment  of  costs,  as  the  court  or  a  judge 
thereof,  may,   in   his   discretion,  direct.     But  after  replication 


214  GENERAL  EQUITY  RULES. 

filed,  the  plaintiff  shall  not  be  permitted  to  withdraw  it  and  to 
amend  his  bill,  except  upon  a  special  order  of  a  judge  of  the 
court,  upon  motion  or  petition,  after  due  notice  to  the  other 
party,  and  upon  proof  by  affidavit  that  the  same  is  not  made  for 
the  purpose  of  vexation  or  delay,  or  that  the  matter  of  the  pro- 
posed amendment  is  material,  and  could  not,  with  reasonable 
diligence,  have  been  sooner  introduced  into  the  bill,  and  upon 
the  plaintiff's  submitting  to  such  other  terms  as  may  be  imposed 
by  the  judge  for  speeding  the  cause. 

Fisher  v.  Rutherford,  Bald.  188;  Goodyear  v.  Bourn,  3 
Blatch.  266;  Wharton's  Ex'rs  v.  Lowrey,  2  Dall.  364;  Snead 
v.  McCoull,  12  How.  407;  Shields  v.  Barrow,  17  How.  130; 
Hunt  v.  Rousemaniere,  2  Mason  342;  Ross  v.  Carpenter,  6 
McLean  382;  Conolly  v.  Taylor,  2  Pet.  556;  Jackson  v. 
Ashton,  10  Pet.  480;  Walden  v.  Bodley,  14  Pet.  156;  Neale  v. 
Neales,  9  Wall.  1;  Wash.  R.  R.  v.  Bradleys,  10  Wall.  299; 
Pierce  v.  West's  Ex'r,  3  Wash.  354;  Duponti  v.  Mussy,  4 
Wash.  128;  Tufts  v.  Tufts,  3  W.  &  M.  457;  Clifford  v.  Cole- 
man, 13  Blatch.  210;  The  Tremolo  Patent,  23  Wall.  518; 
Battle  v.  Mutual  L.  I.  Co.,  10  Blatch.  418;  Lichtenauer  v. 
Cheney,  3  McCrary  119;  Brown  v.  White,  16  Fed.  Rep.  900; 
National  Bank  v.  Carpenter,  101  U.  S.  567;  Graffan  v.  Bur- 
gess, 117  U.  S.  181;  Clements  v.  Moore,  6  Wall.  310;  Adam's 
Equity,  p.  346,  note  3. 

30 

If  the  plaintiff  so  obtaining  any  order  to  amend  his  bill,  after 
answer,  or  plea,  or  demurrer,  or  after  replication,  shall  not  file 
his  amendments  or  amended  bill,  as  the  case  may  require,  in  the 
clerk's  office,  on  or  before  the  next  succeeding  rule  day,  he  shall 
be  considered  to  have  abandoned  the  same,  and  the  cause  shall 
proceed  as  if  no  application  for  any  amendment  had  been  made. 
Marshall  v.  Vicksburg,  15  Wall.  146. 

DEMURRERS  AND  PLEAS. 
31 
No  demurrer  or  plea  shall  be  allowed  to  be  filed  to  any  bill 
unless  upon  a  certificate  of  counsel  that,  in  his  opinion,  it  is  well 
founded  in  point  of  law,  and  supported  by  the  affidavit  of  the 
defendant  that  it  is  not  interposed  for  delay;  and  if  a  plea,  that 
it  is  true  in  point  of  fact. 

Goodyear  v.  Toby,  6  Bl.  C.  C.  130;  Newby  v.  Oregon 
Cent.  R.  Co.,  1  Saw.  63;  Ewing  v.  Blight,  3  Wall.  Jr.  134; 


17.  S.   SUPKEME    COTJBT.  '_' 1  5 

Sims  v.  Lyle,  4  Wash.  301;  National  Bank  v.  Insurance  Co  , 
104  U.  S.55.  76;  Secor  v.  Singleton,  3  McCrary  230;  Filer 
v.  Levy,  17  Fed.  Rep.  610. 

32 

The  defendant  may,  at  any  time  before  the  bill  is  taken  for 
confessed,  or  afterwards,  with  the  leave  of  the  court,  demur  or 
plead  to  the  whole  bill,  or  to  part  of  it,  and  he  may  demur  to 
part,  plead  to  part,  and  answer  as  to  the  residue;  but  in  every 
cast-,  in  which  the  bill  specially  charges  fraud  or  combination, 
a  plea  to  such  part  must  be  accompanied  with  an  answer  fortify- 
ing the  plea,  aud  explicitly  denying  the  fraud  and  combination 
and  the  facts  on  which  the  charge  is  founded. 

Atwill  v.  Ferrett,  2  Blatch.  39;  Maxwell  v.  Kennedy,  8 
How.  210;  -Rhode  Island  v.  Massachusetts,  15  Pet.  233;  Fos- 
ter v.  Swasey,  2  W.  &  M.  217;  Pierpont  v.  Fowle,  2  W.  & 
M.  23;  Wisner  v.  Barnett,  4  Wash.  631;  Gallagher's  Ex'rs 
v.  Roberts.  1  Wash.  320;  Livingston  v.  Story,  9  Peters  632; 
Oliver  v.  Decatur,  4  Cranch  C.  C.  458;  Heath  v.  Erie  R.  R. 
Co.,  8  Blatch.  348;  Brandon  Co.  v.  Prime,  14  Blatch.  371; 
Perry  v.  Littlefield,  17  Blatch.  273;  Crescent  City  Co.  v. 
Butchers,  etc.,  Co.,  12  Fed.  Rep.  225;  Hayes  v.  Davton,  18 
Blatch.  420;  Beard  v.  Bowler,  2  Bond  13;  Wythe  v.  Palmer, 
3  Saw.  412;  Kirkpatrick  v.  White,  4  Wash.  C.  C.  595; 
Wheeler  v.  McCormick,  8  Blatch.  267;  Lamb  v.  Starr, 
Deady  351;  Noyes  v.  Williard,  1  Woods  187;  Lewis  v.  Baird, 
3  McLean  5fi;  Burnley  v.  Jeffersonville,  3  McLean  336; 
Sbeltou  v.  Tiffin,  6  How.  163;  House  v.  Mullen,  22  Wall.  42; 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Macomb.  2  Fed.  Rep.  18. 

33 

The  plaintiff  may  set  down  the  demurrer  or  plea  to  be  argued, 
or  he  may  take  issue  on  the  plea.  If,  upon  an  issue,  the  facts 
stated  in  the  plea  be  determined  for  the  defendant,  they  shall 
avail  him  as  far  as  in  law  and  equity  they  ought  to  avail  him. 

Meyers  v.  Dorr,  13  Blatch.  22;  Gallagher's  Ex'rs  v.  Rob- 
erts, 1  Wash.  320;  Rhode  Island  v.  Massachusetts,  14  Peters 
210;  Melius  v.  Thompson,  1  Cliff  125;  Parton  v.  Pranc,  3 
Cliff  537:  S.  C.  2  Off.  Pat.  Gaz.  619;  Gernon  v.  Boccalinc, 
2  Wash.  C.  C.  199. 

34 

If,  upon  the  hearing,  any  demurrer  or  plea  is  overruled,  the 

plantiff  shall  be  entitled  to  his  costs  in  the  cause  up  to  that 

period,  unless  the  court  shall  be  satisfied  that  the  defendant  had 

good  ground,  in  point  of  law  or  fact,  to  interpose  the  same,  and 


216  GENERAL    EQUITY    RULES. 

it  was  not  interposed  vexatiously  or  for  delay.  And  upon  tbc 
overruling  of  any  plea  or  demurrer,  the  defendant  shall  be 
assigned  to  answer  the  bill,  or  so  much  thereof  as  is  covered  by 
the  plea  or  demurrer,  the  next  succeeding  rule  day,  or  at  such 
other  period  as,  consistently  with  justice  and  the  rights  of  the 
defendant,  the  same  can,  in  the  judgment  of  the  court,  be  rea- 
sonably done;  in  default  whereof,  the  bill  shall  be  taken  against 
him  pro  confesso,  and  the  matter  thereof  proceeded  in  and  de- 
creed accordingly. 

Poultney  v.  City  of  Lafayette,  3  How.  81;  Sims  v.  Lyle, 
4  Wash.  C.  C.  303;  Wooster  v.  Blake,  7  Fed.  Rep.  816; 
Halderman  v.  Halderman,  Hemp.  407;  Suydam  v.  Beals,  4 
McLean  12;  Fellows  v.  Hall,  3  McLean  487;  Ormsby  v. 
Union  Pac.  R'y  Co.,  4  Rep.  Fed.  170;  Newman  v.  Moody, 
19  Fed.  Rep.  858. 

35 

If,  upon  the  hearing,  any  demurrer  or  plea  shall  be  allowed, 
the  defendant  shall  be  entitled  to  bis  costs.  But  the  court  may, 
in  its  discretion,  upon  motion  of  the  plaintiff,  allow  him  to 
amend  his  bill  upon  such  terms  as  it  shall  deem  reasonable. 

Brooks  v.  By  am,  2  Story  553;  National  Bank  v.  Carpen- 
ter, 101  U.  S.  567;  Hunt  v.  Rousemaniere,  2  Mason  342; 
Dwight  v.  Humphreys,  3  McLean  104;  Ketchum  v.  Driggs, 
6  McLean  14;  Gaylor  v.  R.  R.  Co.,  6  Biss.  286. 

36 

No  demurrer  or  plea  shall  be  held  bad,  and  overruled  upon 
argument,  only  because  such  demurrer  or  plea  shall  not  cover  so 
much  of  the  bill  as  it  might  by  law  have  extended  to. 

Livingston  v.  Story,  9  Pet.  633;  Kirkpatrick  v.  White,  4 
Wash.  595. 

37 
No  demurrer  or  plea  shall  be  held  bad,  and  overruled  upon 
argument,  only  because  the  answer  of  the  defendant  may  extend 
to  some  part  of  the  same  matter  as  may  be  covered  by  such  de- 
murrer or  plea. 

Lewis  v  Baird,  3  McLean  56;  Ferguson  v.  O'Hara,  1 
Peters  C.  C.  493;  Crescent  City  Co.  v.  Butchers,  etc.,  Co., 
12  Fed.  Rep.  225;  Hayes  v.  Dayton,  18  Blatch.  420. 

38 
If  the  plaintiff  shall  not  reply  to  any  plea,  or  set  down  any 
plea  or  demurrer  for  argument,  on  tbe  rule  day  when  the  same 


I.   8.   SUPREME    COURT.  21  T 

is  filed,  or  on  the  next  succeeding  rule  day,  he  shall  be  deemed 
to  admit  the  truth  and  sufficiency  thereof,  and  his  bill  shall  be 
dismissed,  as  of  course,  unless  a  judge  of  the  court  shall  allow 
him  further  time  for  the  purpose. 

Poultneyv.  Lafayette,  3  How.  81;  Parton  v.  Prang,  3  Cliff 
537;  S  C,  2  Off.  Pat.  Gaz.  619;  Hughes  v.  Blake,  6  Wheat. 
453;  Leeds  v.  Marine  Ins.  Co..  2  Wheat.  380;  Newby  v. 
Oregon  C.  R.  R.  Co.,  1  Saw.  03;  National  Bank  v.  Insurance 
Co.;  104  U.   S.  54. 

ANSWERS. 

39 

The  rule,  that  if  a  defendant  submits  to  answer,  he  shall 
answer  fully  to  all  the  matters  of  the  bill,  shall  no  longer  apply 
in  cases  where  he  might  by  plea  protect  himself  from  such 
answer  and  discovery.  And  the  defendant  shall  be  entitled  in 
all  cases,  by  answer,  to  insist  upon  all  matters  of  defence  (not 
being  matters  of  abatement  or  to  the  character  of  the  parties,  or 
matters  of  form),  in  bar  of  or  to  the  merits  of  the  bill,  of  which 
he  may  be  entitled  to  avail  himself  by  a  plea  in  bar;  and  in  such 
answer  he  shall  not  be  compellable  to  answer  any  other  matters 
than  he  would  be  compellable  to  answer  and  discover  upon  riling 
a  plea  in  bar,  and  an  answer  in  support  of  such  plea,  touching 
the  matters  set  forth  in  the  bill,  to  avoid  or  repel  the  bar  or 
defence.  Thus,  for  example,  a  bona  ride  purchaser  for  a  valu- 
able consideration,  without  notice,  may  set  up  that  defence  by 
way  of  answer  instead  of  plea,  and  shall  be  entitled  to  the  same 
protection,  and  shall  not  be  compellable  to  make  any  further 
answer,  or  discovery  of  his  title,  than  he  would  be  in  any  answer 
in  support  of  such  plea. 

Hardeman  v.  Harris.  7  How.  720;  Piatt  v.  Oliver,  1  Mc- 
Lean 295;  Mech.  Bank  of  Alexandria  v.  Lynn,  1  Pet.  376; 
Boone  v.  Chiles,  10 Pet.  179;  Brooks  v.  Byam.  1  Story  296; 
Kittredc;e  v.  Pres.  Claremont  B'k,  3  Storey  590;  Gaines  v. 
Agnelly,  1  Woods  238;  Samples  v.  The  Bank,  1  Woods  523; 
Vose  v.  Reed,  1  Woods  047;  Livingstone  v.  Story,  11  Peters 
352;  Wickliffe  v.  Owings,  17  How.  47;  Wood  v.  Mann,  1 
Sum.  578;  Clark  v.  White,  12  Peters  178:  Randall  v.  Phillips, 
3  Mason  378;  Bailey  v.  Wright,  2  Bond  181 ;  Lenox  v.  Prout, 

3  Wheat,  520;  Union  Bank  v.   Geary,  5  Peters  98;  Higbe  v. 
Hopkins,  1  Wash.  C.  C.  230;  Carpenter  v.   Prov.  W.  I  Co., 

4  How.    185;  Hughes  v.    Blake,  1  Mason  515;  Langdon  v. 
•Goddard.  2  Story  2(i7;  Gould  v.  Gould,  3  Story  516;  Greeley 


218  GENERAL    EQUITY    RULES. 

v.  Smith,  3  Story  659;  Town  v.  Smith,  1  Wood  &  M.  115; 
Delano  v.  Winsor,  1  Cliff.  501;  Pomeroy  v.  Manin,  2  Paine 
476;  Toby  v.  Leonard,  2  Cliff.  40;  Gilman  v.  Libbey,  4  Cliff. 
447;  Hayward  v.  National  Bank,  2  Cliff.  294;  Gernon  v. 
Boccaline.  2  Wash.  C.  C.  199;  Walker  v.  Derby.  5  Biss.  134; 
Field  v.  Holland,  6  Cranch  8;  Russell  v.  Clark,  7  Cranch  69; 
Clark's  Ex'rs  v.  Van  Reimsdyk,  9  Cranch  153;  Leeds  v. 
Marine  Ins.  Co.,  2  Wheat.  380;  Morris  v.  Nixon,  1  How. 
119;  Van  Reimsdyk  v.  Kane,  1  Gall.  630;  Osborne  v.  U.  S. 
Bank,  9  Wheat.  738. 

40 

A  defendant  shall  not  be  bound  to  answer  any  statement  or 
charge  in  the  bill,  unless  specially  and  particularly  interrogated 
thereto;  and  a  defendant  shall  not  be  bound  to  answer  any  in- 
terrogatory in  the  bill,  except  those  interrogatories  which  such 
defendant  is  required  to  answer;  and  where  a  defendant  shall 
answer  any  statement  or  charge  in  the  bill  to  which  he  is  not 
interrogated,  only  by  stating  his  ignorance  of  the  matter  so  stated 
or  charged,  such  answer  shall  be  deemed  impertinent. 

Ordered,  that  the  fortieth  rule,  heretofore  adopted  and  promul- 
gated by  this  court  as  one  of  the  rules  of  practice  in  suits  in 
equity  in  the  circuit  courts,  be,  and  the  same  is  hereby  repealed 
and  annulled.  And  it  shall  not  hereafter  be  necessary  to  inter- 
rogate a  defendant  specially  and  particularly  upon  any  statement 
in  the  bill,  unless  the  complainant  desires  to  do  so,  to  obtain  a 
discovery. 

10  How.  v. ;  Young  v.  Grundy,  3  Cranch  51 ;  Treadwell 
v.  Cleveland,  3  McLean  283;  Langdon  v.  Goddard,  3  Story 
13;  Parsons  v.  Cumming,  1  Woods  461;  Bailey  v.  Young. 
12  Blatch.  200. 

41 
The  interrogatories  contained  in  the  interrogating  part  of  the 
bill  shall  be  divided  as  conveniently  as  may  be  from  each  other, 
and  numbered  consecutively  1,  2,  3,  etc.;  and  the  interrogatories 
which  each  defendant  is  required  to  answer  shall  be  specified  in 
a  note  at  the  foot  of  the  bill,  in  the  form,  or  to  the  effect  follow- 
ing, that  is  to  say:  "The  defendant  (A.  B.)  is  required  to  answer 
the  interrogatories  numbered  respectively  1,  2,  3,"  etc.  ;  and  the 
office  copy  of  the  bill  taken  by  each  defendant  shall  not  contain 
any  interrogatories,  except  those  which  such  defendant  is  so  re- 
quired to  answer,  unless  such  defendant  shall  require  to  be  fur 
nished  with  a  copy  of  the  whole  bill. 


U.  S.  SUPREME    COURT.  2U> 

If  the  complainant,  in  his  bill,  shall  waive  an  answer  under 
oath,  or  shall  only  require  an  answer  under  oath,  with  regard  to 
certain  specified  interrogatories,  the  answer  of  the  defendant, 
though  under  oath,  except  such  part  thereof  a9  shall  be  directly- 
responsive  to  such  interrogatories,  shall  not  be  evidence  in  his 
favor,  unless  the  cause  be  set  down  for  hearing  on  bill  and 
answer  only;  but  may  nevertheless  be  used  as  an  affidavit,  with 
the  same  effect  as  heretofore,  on  a  motion  to  grant  or  dissolve  an 
injunction,  or  on  any  other  incidental  motion  in  the  cause;  but 
this  shall  not  prevent  a  defendant  from  becoming  a  witness  in  his 
own  behalf  under  section  3  of  the  act  of  Congress  of  July  2, 
18G4. 

R.  S.  sec.  858;  13  Wall.  xi. ;  Slessinger  v.  Buckingham,  8 
Saw.  469;  Patterson  v.  Gaines,  6  How.' 550;  Amory  v.  Law- 
rence, 3  Cliff.  524;  Holbrook  v.  Black,  8  L.  R.  N.  S.  89; 
Heath  v.  Erie  R.  R.  Co.,  8  Blatch.  348. 

42 

The  note  at  the  foot  of  the  bill,  specifying  the  interrogatories 
which  each  defendant  is  required  to  answer,  shall  be  considered 
and  treated  as  part  of  the  bill,  and  the  addition  of  any  such  note  to 
the  bill,  or  any  alteration  in  or  addition  to  such  note,  after  the  bill 
is  filed,  shall  be  considered  and  treated  as  an  amendment  of  the 
bill. 

43 

Instead  of  the  words  of  the  bill  now  in  use,  preceding  the 
interrogating  part  thereof,  and  beginning  with  the  words  "To 
the  end,  therefore,"  there  shall  here  after  be  used  the  words  in 
the  form,  or  to  the  effect  following:  "To  the  end,  therefore, 
that  the  said  defendants  may,  if  they  can,  show  why  your  orator 
should  not  have  the  relief  hereby  prayed,  and  may,  upon  their 
several  and  respective  corporal  oaths,  and  according  to  the  best 
and  utmost  of  their  several  and  respective  knowledge,  remem- 
brance, information  and  belief,  full,  true,  direct,  and  perfect 
answer  make  to  such  of  the  several  interrogatories  hereinafter 
numbered  and  set  forth,  as,  by  the  note  hereunder  written,  they 
are  respectively  required  to  answer,  that  is  to  say: 

"1.  Whether,"  etc. 

"2.  Whether,"  etc. 

Langdon  v.  Goddard,  3  Story  13. 


220  GENERAL  EQUrfY  RULES. 

44 
A  defendant  shall  beal  liberty,  by  answer,  to  decline  answer- 
ing any  interrogatory  or  part  of  an  interrogatory,  from  answering 
which  he  might  have  protected  himself  by  demurrer;  and  he 
shall  be  at  liberty  so  to  decline,  notwithstanding  he  shall  answer 
other  parts  of  the  bill,  from  which  he  might  have  protected  him- 
self by  demurrer. 

Mech.  Bank  of  Alexandria  v.  Lynn,  1  Pet.  376. 

45 
No  special  replication  to  any  answer  shall  be  filed;  but  if  any 
matter  alleged  in  the  answer  shall  make  it  necessary  for  the 
plaintiff  to  amend  his  bill,  he  may  have  leave  to  amend  the  same 
with  or  without  the  payment  of  costs,  as  the  court,  or  a  judge 
thereof,  may,  in  his  discretion,  direct. 

Taylor  v.  Benham,  5  How.  233;  Wilson  v.  Stolly,  4  Mc- 
Lean 275;  Colman  v.  Martin,  6  Blatch.  291;  Duponti  v. 
Massy,  4  Wash.  C.  C.  128:  Clements  v.  Moore,  6  Wall.  299; 
Mason  v.  Hartford  P.  &  F.  R.  Co.,  10  Fed.  Rep.  334. 

46 
In  every  case  where  an  amendment  shall  be  made  after  answer 
filed,  the  defendant  shall  put  in  a  new  or  supplemental  answer, 
on  or  before  the  next  succeeding  rule  day  after  that  on  which  the 
amendment  or  amended  bill  is  filed,  unless  the  time  therefor  is 
enlarged  or  otherwise  ordered  by  a  judge  of  the  court;  and  upon 
his  default,  the  like  proceedings  may  be  had  as  in  cases  of  an 
omission  to  put  in  an  answer. 

PARTIES   TO   BILLS. 

47 
In  all  cases  where  it  shall  appear  to  the  court  that  persons  who 
might  otherwise  be  deemed  necessary  or  proper  parties  to  the  suit, 
cannot  be  made  parties,  by  reason  of  their  being  out  of  the  jur- 
isdiction of  the  court,  or  incapable  otherwise  of  being  made  par- 
ties, or  because  their  joinder  would  oust  the  jurisdiction  of  the 
court  as  to  the  parties  before  the  court,  the  court  may,  in  its  dis- 
cretion, proceed  in  the  cause  without  making  such  persons  par- 
ties; and,  in  such  cases,  the  decree  shall  be  without  prejudice  to 
the  rights  of  the  absent  parties. 


U.  S.  SUPJREME    COURT.  'I'll 

R.  S.  Sec.  737;  Louisville  It.  R.  Co.  v.  Letson,  2  liow.  556; 
Shields  v.  Barrow,  17  How.  130;  Shields  v.  Barrow,  17  How. 
141;  Herndon  v.  Ridgway,  17  How.  425;  Coiron  v.  Millau- 
don,  19  How.  113;  Taylor  v.  Cook,  2  McLean  510;  Bargh  v. 
Page,  4  McLeaa  11;  Doremus  v.  Bennett,  4  McLean  224; 
Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  GO;  Caldwell  v.  Tag 
gart,  4  Peters  190;  Morgan  v.  Morgan.  2  Wheat,  298;  Wil- 
liams v.  Bankhead,  19  Wall.  263;  Van  Reimsdyk  v.  Kane,  1 
Gall.  371;  West  v.  Randall,  2  Mason  181;  Elmendorf  v. Tay- 
lor, 10  Wheat.  152:  Finley  v.  Bank  of  U.  S.,  11  Wheat.  30*4 ; 
French  v.  Shoemaker,  14  Wall.  314;  Fitch  v.  Creitihton.  24 
How.  159;  Heath  v.  Erie  Railway  Co.,  8  Blatch.  347;  Abbott 
v.  American  H.  R.  Co.,  4  Blatch.  491;  Mallow  v.  Hinde.  12 
Wheat.  193;  Vattierv.  Hinde, 7  Peters 252;  McCoy  v.  Rhodes, 
11  How.  131;  Cameron  v.  McRoberts,  3  Wheat.  591;  Hard- 
ing v.  Handy,  11  Wheat.  103;  Gray  v.  Larrimore,  2  Abb.  U. 
S.  542;  Cole  S.  M.  Co.  v.  Virginia  &  C.  Co..  1  Saw.  470; 
Payne  v.  Hook,  7  Wall.  425;  Mechanics'  Bank  v.  Seaton,  1 
Peters  299;  Calhoun  v.  St.  Louis,  etc..  Co.,  14  Fed.  Rep.  4; 
Wormley  v.  Wormley,  8  Wheat.  421;  Carneal  v.  Banks.  10 
Wheat.  181;  Ward  v.  Arredondo,  1  Paine,  410;  Harrison  v. 
Urann,  1  Story  64;  Joy  v.  Wirtz,  1  Wash.  C.  C.  517;  Drake 
v.  Goodridge,  6  Blatch.  151;  Riddle  v.  Mandeville,  5  Cranch 
322;  Russell  v.  Clarke,  7  Cranch  64;  Marshall  v.  Beverly,  5 
Wheat.  313;  Connecticut  v.  Pennsylvania,  5  Wheat. 
424;  Barney  v.  Baltimore,  6  Wall.  280;  Bank  v.  Car- 
rollton  R.  R.,  11  Wall.  624;  Traders  Bank  v.  Campbell,  14 
Wall.  87;  Ribon  v.  R.  R.  Co..  lfi  Wall.  446;  Young  v.Cush- 
ing,  4  Biss.  456;  Bunce  v.  Gallagher,  5  Blatch.  481;  Florence 
S.  M.  Co.  v.  Singer  S.  M.  Co.,  8  Blatch.  113;  Carson  v.  Rob- 
ertson, Chase  475;  Bank  v.  Smith,  6  Fed.  Rep.  215;  Dorrnit- 
zer  v.  111.  etc.,  B.  Co.,  6  Fed.  Rep.  217;  Milligan  v.  Milledge, 
3  Cranch  220;  Hoxie  v.  Carr,  1  Sum.  173;  Hunt  v.Wyoliffe, 
2  Peters  201;  Dandridge  v.  Washington's  Ex'rs,  2  Peters 
370;  Parsons  v.  Lyman,  4  Blatch.  432;  Brown  v.  Pacific  M. 
S.  S.  Co.,  5  Blatch.  526;  Harrison  v.  Brown,  4  Wash.  C.  C. 
202;  Connolly  v.  Tayler,  2  Peters  556;  Mollan  v.  Torrance, 
9  Wheat.  537;  Coanu  v.  Atlanta,  etc.,  Co.,  14  Fed.  Rep.  4; 
Kerr  v.  Watts,  6  Wheat.  550;  McArthur  v.  Scott,  113  U.  8. 
340. 

48 

Where  the  parties  on  either  side  are  very  numerous,  and  can 
not,  without  manifest  convenience  and  oppressive  delays  in  the 
suit,  be  all  brought  before  it,  the  court,  in  its  discretion,  may 
dispense  with  making  all  of  them  parties,  and  may  proceed  in 
the  suit,  having  sufficient  parties  before  it  to  represent  all  the 
adverse  interests  of  the  plaintiffs  and  the  defendants  in  the  suit 


222  GENERAL    EQUITY    RULES. 

properly  before  it.     But  in  such  cases  the  decree  shall  be  without 
prejudice  to  the  rights  and  claims  of  all  the  absent  parties. 

Mandeville  v.  Ri'jgs,  2  Peters  482;  Brown  v.  Pacific  M.  S. 
S.  Co.,  5  Blatch.  525;  Campbell  v.  R.  R.  Co.,  1  Woods  368; 
Wilmer  v.  Atlanta,  etc.  Co.,  2  Woods  447;  West  v.  Randall, 
2  Mason  181;  Calhoun  v.  St.  Louis  Ry.  Co.,  14  Fed.  Rep.  4. 

49 
In  all  suits  concerning  real  estate,  which  is  vested  in  trustees 
by  devise,  and  such  trustees  are  competent  to  sell  and  give  dis- 
charges for  the  proceeds  of  the  sale,  and  for  the  rents  and  profits 
of  the  estate,  such  trustees  shall  represent  the  persons  benefic- 
ially interested  in  the  estate  or  the  proceeds,  or  the  rents  and 
profits,  in  the  same  manner,  and  to  the  same  extent  as  the  execu- 
tors or  administrators  in  suits  concerning  personal  estate  repre- 
sent the  persons  beneficially  interested  in  such  personal  estate: 
and  in  such  cases  it  shall  not  be  necessary  to  make  the  persons 
beneficially  interested  in  such  real  estate,  or  rents  and  profits, 
parties  to  the  suit ;  but  the  court  may,  upon  consideration  of  the 
matter  on  the  hearing,  if  it  shall  so  think  fit,  order  such  persons 
to  be  made  parties. 

Chew  v.  Hyman,  10  Biss.  240. 

50 

In  suits  to  execute  the  trusts  of  a  will,  it  shall  not  be  necessary 
to  make  the  heir-at-law  a  party;  but  the  plaintiff  shall  be  at 
liberty  to  make  the  heir-at-law  a  party,  where  he  desires  to  have 
the  will  established  against  him. 

Ware  v.  Galveston  City  Co.,  Ill  U.  S.  170. 
51 
In  all  cases  in  which  the  plaintiff  has  a  joint  and  several 
demand  against  several  persons,  either  as  principals  or  sureties, 
it  shall  not  be  necessary  to  bring  before  the  court,  as  parties  to  a 
suit  concerning  such  demand,  all  the  persons  liable  thereto  ;  but 
the  plaintiff  may  proceed  against  one  or  more  of  the  persons 
severally  liable. 

French  v.  Shoemaker,  14  Wall.  314. 
52 
Where  the  defendant  shall,    by  his  answer,  suggest  that  the 
bill   is  defective  for   want  of  parties,   the  plaintiff  shall  be  at 


U.  S.  SUPREME    COURT.  '2'2'-> 

liberty,  within  fourteen  days  alter  answer  filed,  to  set  down  the 
cause  for  argument  upon  that  objection  only;  and  the  purpose 
for  which  the  same  is  so  set  down  shall  be  notified  by  an  entry, 
to  be  made  in  the  clerk's  order  book,  in  the  form,  or  to  the  effect 
following;  that  is  to  say:  "Set  down  upon  the  defendant's 
objection  for  want  of  parties."  And  where  the  plaintiff  shall 
not  so  set  down  his  cause,  but  shall  proceed  therewith  to  a  hear- 
ing, notwithstanding  an  objection  for  want  of  parties  taken  by 
the  answer,  he  shall  not,  at  the  hearing  of  the  cause,  if  the 
defendant's  objections  shall  then  be  allowed,  be  entitled,  and  of 
course,  to  an  order  for  liberty  to  amend  his  bill  by  adding 
parties.  But  the  court,  if  it  thinks  fit,  shall  be  at  liberty  to  dis- 
miss the  bill. 

Greenleaf  v.  Queen,  1  Peters  138;  U.  S.  v.  Gillespie,  6 
Fed.  Rep.  803;  Segee  v.  Thomas,  7  Blatch.  11;  Harrison  v. 
Rowan,  4  Wash.  C.  C.  202. 

53 
If  a  defendant  shall,  at  a  hearing  of  the  cause,  object  that  a 
suit  is  defective  for  want  of  parties,  not  having  by  plea  or. 
answer  taken  the  objection,  and  therein  specified,  by  name  or 
description,  the  parties  to  whom  the  objection  applies,  the  court, 
if  it  shall  think  fit,  shall  be  at  liberty  to  make  a  decree  saving 
the  rights  of  the  absent  parties. 

Segee  v.  Thomas,  3  Blatch.  11;  Bank  v.  Seton,  1  Peters, 
299;  Story  v;  Livingstone,  13  Peters  959;  Wallace  v.  Holmes, 
9  Blatch.  65;  Greenleaf  v.  Green,  1  Pet.  138. 

NOMINAL   PARTIES   TO   BILLS. 
54 

Where  no  account,  payment,  conveyance,  or  other  direct 
relief  is  sought  against  a  party  to  a  suit,  not  being  an  infant,  the 
party,  upon  service  of  the  subpoena  upon  him,  need  not  appear 
and  answer  the  bill,  unless  the  plaintiff  specially  requires  him  so 
to  do  by  the  prayer  of  his  bill,  but  he  may  appear  and  answer  at 
his  option;  and  if  he  does  not  appear  and  answer,  he  shall  be 
bound  by  all  the  proceedings  in  the  cause.  If  the  plaintiff  shall 
require  him  to  appear  and  answer,  he  shall  be  entitled  to  the 
costs  of  all  the  proceedings  against  him,  unless  the  court  shall 
otherwise  direct. 

Wormley  v.  Wormley,  8  Wheat.  422. 


224:  GENERAL    EQUITY    RULES. 

55 
Whenever  an  injunction  is  asked  for  by  the  bill  to  stay  pro- 
ceedings at  law,  if  the  defendant  do  not  enter  his  appearance, 
and  plead,  demur  or  answer  to  the  same  within  the  time  pre- 
scribed therefor  by  these  rules,  the  plaintiff  shall  be  entitled,  as 
of  course,  upon  motion,  without  notice,  to  such  injunction.  But 
special  injunctions  shall  be  grantable  only  upon  due  notice  to  the 
other  party,  by  the  court,  in  term,  or  by  a  judge  thereof,  in 
vacation,  after  a  hearing,  which  may  be  ex  parte  if  the  adverse 
party  does  uot  appear  at  the  time  and  place  ordered.  In  every 
case  where  an  injunction,  either  the  common  injunction  or  a 
special  injunction,  is  awarded  in  vacation,  it  shall,  unless  pre- 
viously dissolved  by  the  judge  granting  the  same,  continue  until 
the  next  term  of  the  court,  or  until  it  is  dissolved  by  some  other 
order  of  the  court. 

R.  S.  sec.  718,  ill),  720;  Simms  v.  Guthrie,  9  Cranch  19; 
Dunn  v.  Clark,  8  Peters  1 ;  McKinne  v.  Voorheis,  7  Cranch 
279;  Dial  v.  Reynolds,  3  Otto  34;  Diggs  v.  Walcott.  4 
Cranch  179;  Haines  v.  Carpenter,  1  Otto  254;  City  Bank  v. 
Skelton,  2  Blatch.  26;  Whepley  v.  Erie  Rv.  Co.,  2  Blatch. 
271;  Ewingv.  Blight.  3  Wall.  Jr.  139;  Fanshawe  v.  Tracy, 
4Biss.  490;  Fremont  v.  Merced  Mf'g  Co.,  1  McAll.  268; 
Walworth  v.  Board  of  Supervisors,  5  Biss.  133 ;  McOauley  v. 
Kellogg,  2  Woods  13;  Marsh  v.  Bennett,  5  McLean  117; 
Mowrey  v.  R.  R.  Co.  4  Biss.  78;  Gray  v.  Chicago,  etc  Co., 
1  Woolw.  63;  Coleman  v.  Hudson  R.  R.  Co.,  5  Blatch.  57; 
Read  v.  Consequa.  4  Wash.  C.  C.  174;  Farmer  v.  Calvert 
Lith.  Co.,  1  Flippin  228:  Poor  \.  Carleton,  3  Sum.  70. 

BILLS   OK   REVIVOR   AND    SUPPLEMENTAL   BILLS. 
56 

Whenever  a  suit  in  equit}r  shall  become  abated  by  the  death 
of  either  party,  or  by  any  other  event,  the  same  may  be  revived 
by  a  bill  of  revivor,  or  a  bill  in  the  nature  of  a  bill  of  revivor,  as 
the  circumstances  of  the  case  may  require,  filed  by  the  proper 
parties  entitled  to  revive  the  same,  which  bill  may  be  filed  in 
the  clerk's  office  at  any  time;  and,  upon  suggestion  of  the  facts 
the  proper  process  of  subp(ena  shall,  as  of  course,  be  issued  by 
the  clerk,  requiring  the  proper  representatives  of  the  other  party 
to  appear  and  show  cause,  if  any  they  have,  why  the  cause 
should  not  be  revived.  And  if  no  cause  shall  be  shown  at  the 
next  rule  day,  which  shall  occur  after  fourteen  days  from  the 


U.  8.  SUPREME    COURT.  "225 

time  of  the  service  of  the  same  process,  the  suit  shall  stand  re- 
vived, as  of  course. 

Glenn  v.  Capp.  11  Gill.  &  J.   1;  Thorn    v.    Germand,    4 

Johns.  Ch.  363;  Requav.  Holmes.  16  N.  Y.  193;  Wa<m.  Ins. 

Co.  v.  Slee,  2  Paige  365;  Minnesota  Co.  v.  St.  Paul  Co.,  2! 

Wall  609;  Mayorfetc,  of  Springfield  v.  Edwards.  10  C.  L. 

N.  51;  Kennedy  v.  Georgia  St.  B'k,  8  How.  586:  Fitzpatrick 

v.  Domingo,    14  Fed.   Rep.  216;  Clarke  v.    Mathewson,  12 

Peters  164;   Clarke   v.    Matthews,  2   Sum.   262;  Vattier  v. 

Hinde,  7  Peters  252;  Mason  v.  Hartford,  P.  &  F.  R.  Co.,  19* 

Fed.  Rep.  53;  Chester  v.  Life  Ass'n  of  America,  4  Fed.  Rep. 

487;  Barribeau  v.  Brant,  17  How.  43;  Illinois  Cent.  R.   R. 

Co.  v.  Turrill,  110  U.  S.  301. 

57 

Whenever  any  suit  in  equity  shall  become  defective  from  any 
event  happeuing  after  the  filing  of  the  bill  (as,  for  example,  by- 
change  of  interest  in  the  parties),  or  for  any  other  reason,  a  sup- 
plemental bill,  or   a   bill  in   the  nature  of  a  supplemental  bill, 
may  be  necessary  to  be  filed  in  the  cause,  leave  to  file  the  same 
may  be  granted  by  any  judge  of  the  court,  on  any  rule  day,  upon 
proper  cause  shown,  and  due  notice  to  the  other  party.     And  if 
leave  is  granted   to  file  such   supplemental    bill,  the    defendant 
shall  demur,  plead,  or  answer  thereto,  on   the  next  succeeding 
rule  day  after  the  supplemental  bill  is  filed  in   the  clerk's  office, 
unless  some  other  time  shall  be  assigned  by  a  judge  of  the  court. 
Oliver's  Ex'r  v.  Decatur,  4  Cr.  C.  C.  458;  Slack  v.  Walcott, 
3  Mason  508;  Greenleaf  v.    Queen,  1   Pet.   138;  Clarke   v. 
Matthewson,  12   Pet.  161;  Winter  v.  Ludlow,  3  Phila.  464; 
Baker  v.  Whiting,  1  Story  218;  Jenkins  v.  Eldredge,  3  Story 
300;  Hoxie  v.  Carr,  1    Sum.  173;  Kennedy   v.  Georgia   St. 
B'k,  8  How.  610;  Tappan   v.  Smith,  5   Biss.    73;  Cohen  v. 
Flesher,  1    Bond.  440;  Caster  v.  Wood,  1    Bald.  289;  Park- 
hurst  v.  Kinsman,  2  Blatch.  72;  Snead  v.  McCoull,  12  How. 
407;  Mosgrove   v.  Kountze,  14  Fed.  Rep.    315;  Chester  v. 
Life  Ass'n  of  America,  4  Fed.  Rep.  487. 

58 
It  shall  not   be  necessary,  in   any  bill  of  revivor  or  supple- 
mental bill,  to  set  forth  any  of  the  statements  in  the  original  suit, 
unless  the  special  circumstances  of  the  case  may  require  it. 

ANSWERS. 
59 
Every  defendant  may  swear  to  his  answer  before  any  justice 
or  judge  of  any  court  of  the  United  States,  or  before  any  com- 
15 


226  GENERAL  EQUITY  RULES. 

missioner  appointed  by  any  circuit  court  to  take  testimony  or 
depositions,  or  before  any  master  in  chancery  appointed  by  any 
circuit  court,  or  before  any  judge  of  any  court  of  a  State  or  Ter- 
ritory. 

Read  v.  Consequa,  4  Wa9h .  C.  C.  335;  Herman  v.  Her- 
man, 4  Wash.  C.  C.  555. 

AMENDMENT  TO  ANSWERS. 
60 
After  an  answer  is  put  in,  it  may  be  amended,  as  of  course, 
in  any  matter  of  form  or  by  filling  up  a  blank,  or  correcting 
a  date  or  reference  to  a  document,  or  other  small  matter,  and 
be  re-sworn  at  any  time  before  a  replication  is  put  in,  or  the 
cause  is  set  down  for  a  hearing  upon  bill  and  answer.  But,  after 
replication,  or  such  setting  down  for  a  hearing,  it  shall  not  be 
amended  in  any  material  matters,  as  by  adding  new  facts  or 
defences,  or  qualifying  or  altering  the  original  statements,  except 
by  special  leave  of  the  court,  or  of  a  judge  thereof,  upon  motion 
and  cause  shown  after  due  notice  to  the  adverse  party,  sup- 
ported, if  required,  by  affidavit.  And  in  every  case  where  leave 
is  so  granted,  the  court,  or  the  judge  granting  the  same,  may, 
in  his  discretion,  require  that  the  same  be  separately  engrossed 
and  added  as  a  distinct  amendment  to  the  original  answer,  so  as 
to  be  distinguishable  therefrom. 

Caster  v.  Wood,  1  Bald.  289;  Foote  v.  Silsby,  1  Blatch. 
545;  Calloway  v.  Dobson,  1  Brock  119;  Wilson  v.  Turber- 
ville's  Ex'r,  2  Cr.  C.  C.  27;  Suydam  v.  Truesdale,  6  McLean 
459;  Smith  v.  Baboock,  3  Sum.  583;  Rhode  Island  v.  Massa- 
chusetts, 13  Peters  23;  Walden  v.  Bradley,  14  Peters  156; 
India  Ruhber  Co.  v.  Phelps.  8  Blatch.  85;  Grier  v.  Gregg,  4 
McLean  202. 

EXCEPTIONS  TO  ANSWERS. 
61 
After  an  answer  is  filed  on  any  rule  day,  the  plaintiff  shall  be 
allowed  until  the  next  succeeding  rule  day  to  file  in  the  clerk's 
office  exceptions  thereto  for  insufficiency,  and  no  longer,  unless 
a  longer  time  shall  be  allowed  for  the  purpose,  upon  cause 
shown  to  the  court,  or  a  judge,  thereof;  and  if  no  exception 
shall  be  filed  thereto  within  that  period,  the  answer  shall  be 
deemed  and  taken  to  be  sufficient. 


U.  8.  SUPREME    COURT.  227 

Brent  v.  Venable,  3  Cr.  C.  C.  227;  The  Patriotic  Bank  v. 
Bank  of  Washington,  5  O.  C.  C  602;  Brooks  v.  Byam,  1 
Story  296;  Hardeman  v.  Harris,  7  How.  726;  Read  v.  Con- 
sequa,  4  Wash.  C.  C.  335;  Bradford  v,  Geiss,  4  Wash.  C.  C. 
513;  Chapman  v.  School  District,  Deady  108;  Griswold  v. 
Hill,  1  Paine  390;  Kitredge  v.  Race,  93  U.  S.  116;  Adamsv. 
Bridgewater  Iron  Co.,  6  Fed.  Rep.  179;  Allis  v.  Stowell,  5 
Fed.  Rep.  203. 

62 

When  the  same  solicitor  is  employed  for  two  or  more  defend- 
ants, and  separate  answers  shall  be  filed,  or  other  proceedings 
had  by  two  or  more  of  the  defendants  separately,  costs  shall  not 
be  allowed  for  such  separate  answers  or  other  proceedings,  un- 
less a  master,  upon  reference  to  him,  shall  certify  that  such 
separate  answers  and  other  proceedings  were  necessary  or  proper, 
and  ought  not  to  have  been  joined  together. 

63 

Where  exceptions  shall  be  filed  to  the  answer  for  insufficiency, 
within  the  period  prescribed  by  these  rules,  if  the  defendant  shall 
not  submit  to  the  same,  and  tile  an  amended  answer  on  the  next 
succeeding  rule  day,  the  plaintiff  shall  forthwith  set  them  down 
for  a  hearing  on  the  next  succeeding  rule  day  thereafter,  before 
a  judge  of  the  court,  and  shall  enter,  as  of  course,  in  the  order 
book,  an  order  for  that  purpose.  And  if  he  shall  not  so  set 
down  the  same  for  hearing,  the  exceptions  shall  be  deemed 
abandoned,  and  the  answer  shall  be  deemed  sufficient;  provided, 
however,  that  the  court,  or  any  judge  thereof,  may,  for  good 
cause  shown,  enlarge  the  time  for  filing  exceptions,  or  for 
answering  the  same,  in  his  discretion,  upon  such  terms  as  he 
may  deem  reasonable. 

Read  v.  Consequa,  4  Wash.  335;  La  Vega  v.  Lapsley,  1 
Woods,  428;  Penn  v.  Butler,  Wall.  C.  C.  4. 

64 

If,  at  the  hearing,  the  exceptions  shall  be  allowed,  the  defend- 
ant shall  be  bound  to  put  in  a  full  aud  complete  answer  thereto 
on  the  next  succeeding  rule  day;  otherwise  the  plaintiff  shall,  as 
of  course,  be  entitled  to  take  the  bill,  so  far  as  the  matter  of  such 
exceptions  is  concerned,  as  confessed,  or  at  his  election,  he  may 
have  a  writ  of  attachment  to  compel  the  defendant  to  make  a 
a  better  answer  to  the  matter  of  the  exceptions;  and  the  defend- 


228  GENERAL  EQUITY  RULES. 

ant,  when  he  is  in  custody  upon  such  writ,  shall  not  be  discharged 
therefrom  but  by  an  order  of  the  court,  or  of  a  judge  thereof, 
upon  his  putting  in  such  answer;  and  complying  with  such  other 
terms  as  the  court  or  judge  may  direct. 

65 
If,  upon  argument,  the  plaintiff's  exceptions  to  the  answer 
shall  be  overruled,  or  the  answer  shall  be  adjudged  insufficient, 
the  prevailing  party  shall  be  entitled  to  all  the  costs  occasioned 
thereby,  unless  otherwise  directed  by  the  court,  or  the  judge 
thereof,  at  the  hearing  upon  the  exceptions. 

REPLICATION  AND  ISSUE. 
66 
Whenever  the  answer  of  the  defendant  shall  not  be  excepted 
to,  or  shall  be  adjudged  or  deemed  sufficient,  the  plaintiff  shall 
file  the  general  replication  thereto,  on  or  before  the  next  succeed- 
ing rule  day  thereafter;  and  in  all  cases  where  the  general  repli- 
cation is  filed,  the  cause  shall  be  deemed  to  all  intents  and  pur- 
poses at  issue,  without  any  rejoinder  or  other  pleading  on  either 
side.  If  the  plaintiff  shall  omit,  or  refuse,  to  file  such  replica- 
tion within  the  prescribed  period,  the  defendant  shall  be  entitled 
to  an  order,  as  of  course,  for  a  dismissal  of  the  suit;  and  the  suit 
shall  thereupon  stand  dismissed,  unless  the  court,  or  a  judge 
thereof,  shall,  upon  motion,  for  cause  shown,  allow  a  replication 
to  be  filed  nunc  pro  tunc,  the  plaintiff  submitting  to  speed  the 
cause,  and  to  such  other  terms  as  may  be  directed. 

Coleman  v.  Martin,  6  Bl.  C.  C.  291 ;  Robinson  v.  Satterlee, 
3  Saw.  134;  Clements  v.  Moore,  6  Wall.  299;  Duponti  v. 
Mussy,  4  Wash.  128;  Jones  v.  Brittau,  1  Woods,  C67;  Bullin- 
t^erv.  Mackey,  14  Bla'ch.  355;  Fisher  v.  Wilson,  16  Blalch. 
220;  Washington  K.  R.  v.  Bradlevs,  10  Wall.  302;  Fischer 
v.  Hayes,  19  Blatch.  26;  S.  C  6  Fed.  Rep.  76;  Vattier  v. 
Hinde,  7  Pet.  252;  Warren  v.  Van  Brunt,  19  Wall.  646;  AUia 
v.  Store,  10  Biss.  57;  S.  C.  5  Fed.  Rep.  203. 

TESTIMONY,    HOW    TAKEN. 
67 

1.  After  the  cause  is  at  issue,  commissions  to  take  testimony 
may  be  taken  out  in  vacation  as  well  as  in  term,  jointly  by  both 
parties,  or  severally,  by  either  party,  upon  interrogatories  filed 
by  the  party  taking  out  the  same,  in  the  clerk's  office,  ten  days' 
notice  thereof  being  given  to  the  adverse  party  to  file   eras*- 


V.   S.  SUPREME    COURT. 

interrogatories  before  the  issuing  of  the  commission;  and,  if  no 
cross-interrogatories  are  filed  at  the  expiration  of  the  time, 
the  commission  may  issue  ex  parte.  In  all  cases,  the  commis- 
sioner or  commissioners  shall  be  named  by  the  court,  or  by  a 
judge  thereof.  If  the  parties  shall  so  agree,  the  testimony  may 
be  taken  upon  oral  interrogatories  by  the  parties  or  their  agents, 
without  filing  any  written  interrogatories. 

2.  Ordered,  that  the  sixty-seventh  rule  governing  equity  prac- 
tice be  so  amended  as  to  allow  the  presiding  judge  of  any  court 
exercising  jurisdiction,  either  in  term  time  or  vacation,  to  vest  in 
the  clerk  of  said  court  general  power  to  name  commissioners  to 
take  testimony  in  like  manner  that  the  court  or  judge  thereof 
can  do  by  the  said  sixty-seventh  rule. 

3.  Either  party  may  give  notice  to  the  other  that  he  desires 
the  evidence  to  be  adduced  in  the  cause  to  be  taken  orally,  and 
thereupon  all  the  witnesses  to  be  examined  shall  be  examined 
before  one  of  the  examiners  of  the  court,  or  before  an  examiner 
to  be  specially  appointed  by  the  court;  the  examiner  to  be  fur- 
nished with  a  copy  of  the  bill  and  answer,  if  any;  and  such 
examination  shall  take  place  in  the  presence  of  the  parties  or 
their  agents,  by  their  counsel  or  solicitors,  and  the  witnesses 
shall  be  subject  to  cross-examination  and  re-examination,  and 
which  shall  be  conducted  as  near  as  may  be  in  the  mode  now 
used  in  common  law  courts.  The  depositions  taken  upon  such 
oral  examination  shall  be  taken  down  in  writing  by  the  examiner 
in  the  form  of  narrative,  unless  he  determines  the  examination 
shall  be  by  question  and  answer  in  special  instances;  and  when 
completed  shall  be  read  over  to  the  witness  and  signed  by  him 
in  the  presence  of  the  parties  or  counsel,  or  such  of  them  as  may 
attend ;  provided,  if  the  witness  shall  refuse  to  sign  the  said  deposi- 
tion, then  the  examiner  shall  sign  the  same;  and  the  examiner 
may,  upon  all  examinations,  state  any  special  matters  to  the 
court  as  he  shall  think  fit;  and  any  question  or  questions  which 
may  be  objected  to  shall  be  noted  by  the  examiner  upon  the 
deposition;  but  he  shall  not  have  power  to  decide  on  the  compe- 
tency, materiality,  or  relevancy  of  the  questions;  and  the  court 
shall  have  power  to  deal  with  the  costs  of  incompetent,  immate- 
rial, or  irrelevant  depositions,  or  parts  of  them,  as  may  be  just. 

In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to 
answer  any  question  put  by  the  examiner,  or  by  counsel  or  solici- 


230  GENERAL    EQUITY    RULES. 

tor,  the  same  practice  shall  be  adopted  as  is  now  practiced  with 
respect  to  witnesses  to  be  produced  on  examination  before  an 
examiner  of  said  court  on  wiitten  interrogatories. 

Notice  shall  be  given  by  the  respective  counsel,  or  solicitors, 
to  the  opposite  counsel,  or  solicitors,  or  parties,  of  the  time  and 
place  of  the  examination,  for  such  reasonable  time  as  the  exam- 
iner may  fix  by  order  in  each  cause. 

When  the  examination  of  witnesses  before  the  examiner  is 
concluded,  the  original  deposition,  authenticated  by  the  signa- 
ture of  the  examiner,  shall  be  transmitted  by  him  to  the  clerk  of 
the  court,  to  be  there  filed  of  record,  in  the  same  mode  as  pre- 
scribed in  the  30th  section  of  Act  of  Congress,  September  24th> 
1789. 

Testimony  may  be  taken  on  commission  in  the  usual  way  by 
written  interrogatories  and  cross-interrogatories,  on  motion  to 
the  court  in  term  time,  or  to  a  judge  in  vacation,  for  special 
reasons  satisfactory  to  the  court  or  judge. 

4.  Where  the  evidence  to  be  adduced  in  a  cause  is  to  be  taken 
orally,  as  provided  in  the  order  passed  at  the  December  term, 
1861,  amending  the  67th  general  rule,  the  court  may,  on  motion 
of  either  party,  assign  a  time  within  which  the  complainant  shall 
take  his  evidence  in  support  of  the  bill,  and  a  time  thereafter 
within  which  the  defendant  shall  take  his  evidence  in  defence, 
and  a  time  thereafter  within  which  the  complainant  shall  take 
his  evidence  in  reply:  and  no  further  evidence  shall  be  taken  in 
the  cause  unless  by  agreement  of  the  parties,  or  by  leave  of  court 
first  obtained  on  motion  for  cause  shown. 

17  How .  vii. ;  1  Black  vi. ;  9  Wall.  vii. ;  R.  8.  §  865;  Van 
Hook  v.  Pendleton,  2  Blatch.  85;  Pierce  v.  Strickland,  2 
Story  292;  Blease  v.  GarliDgton,  92  U.  S.  1;  Sickles  v.  The 
Gloucester  Co.  3  Wall.  Jr  193;  Coleman  v.  Martin,  6  Blatch. 
291;  Bronson  v.  LaCross  R.  R.  Co.  9  Am.  Law  R.  350; 
Bi-choffscheim  v.  Baltzen,  10  Fed.  Rep.  1;  In  re  Clarke,  9 
Blatch.  372;  N.  C.  It.  R.  Co.  v.  Drew,  3  Woods  692;  U.  S. 
v,  Parrott,  1  McAll.  447;  Armstrong  v.  Brown,  1  Wash.  C. 
C.  43;  Menus  v.  Dupont,  3  Wash.  C.  C.  31;  Willings  v. 
Consequa,  1  Peters  3ul;  Lonsdale  v.  Brown,  3  Wash.  C.  C. 
404;  Boudereau  v.  Montgomery,  4  Wash.  C.  C.  186;  Rhodes 
V.  Selin,  4  Wash.  C.  C.  715;  Read  v.  Bertrand,  4  Wash.  C. 
C.  558;  Crocker  v.  Franklin  Co.,  1  Story  169;  Ketland  v. 
Bissett,  1  Wash.  C.  C.  144;  Dodge  v.  Israel,  4  Wash.  C.  C. 
323;    Richardson   v.  Golden,   3   Wash.  C.  C.  109;    Bell  t. 


U.  S.  SUPREME    0OUKT.  231 

Davidson,  3  Wash.  C.  C.  328;  Gilpins  v.  Consequa,  3  Wash. 
C.  C.  184;  Gass  v.  Stinson,  3  Sum.  (J8;  Frese  v.  Biedenfeld, 
14  Blatch.  402;  De  Butts  v.  Bacon,  1  Cranch  C.  C.  569;  Liv- 
ingston v.  Story,  9  Peters  G32. 

68 

Testimony  may  also  be  taken  in  the  cause  after  it  is  at  issue, 
by  deposition,  according  to  the  acts  of  Congress.  But  in  such 
case,  if  no  notice  is  given  to  the  adverse  party  of  the  time  and 
place  of  taking  the  deposition,  he  shall,  upon  motion  and  affi- 
davit of  the  fact,  be  entitled  to  a  cross-examination  of  the  wit- 
ness, either  under  a  commission,  or  by  a  new  deposition  taken 
under  the  acts  of  Congress,  if  a  court,  or  a  judge  thereof,  shall, 
under  all  the  circumstances,  deem  it  reasonable. 

R.  S.  sees.  868-875;  Phettiplace  v.  Sayles,  4  Mason  312; 
Gass  v.  Stinson,  3  Sum.  98;  Russell  v.  McLellan,  3W.&M. 
157;  The  Ruby,  5  Mason  451. 

69 

Three  months,  and  no  more,  shall  be  allowed  for  the  taking  of 
testimony  after  the  cause  is  at  issue,  unless  the  court,  or  judge 
thereof,  shall,  upon  special  cause  shown  by  either  party,  enlarge 
the  time;  and  no  testimony  taken  after  such  period  shall  be 
allowed  to  be  read  in  evidence  at  the  hearing.  Immediately 
upon  the  return  of  the  commissions  and  depositions  containing 
the  testimony,  into  the  clerk's  office,  publication  thereof  may  be 
ordered  in  the  clerk's  office,  by  any  judge  of  the  court,  upon  due 
notice  to  the  parties,  or  it  maj'  be  enlarged,  as  he  may  deem 
reasonable  under  all  the  circumstances.  But  by  consent  of  the 
parties,  publication  of  the  testimony  may,  at  any  time,  pass  in 
the  clerk's  office,  such  consent  being  in  writing,  and  a  copy 
thereof  entered  in  the  order  book,  or  indorsed  upon  the  depo- 
sition or  testimony. 

9  Wall,  vii.;  Brown  v.  Hall,  6  Bl  C.  C.  401;  Patten  v. 
Darling,  1  Cliff.  254;  Melius  v.  Howard,  2  Curt.  2(54;  Ingle 
v.  Jones,  9  Wall.  480;  Wood  v.  Mann,  2  Sum.  31(5;  Gilbert 
v.  Van  Arman,  1  Flippin  421 ;  Co  eman  v.  Martin,  6  Blatch. 
291;  De  Butts  v.  Bacon.  1  Craneh  C.  C.  569;  Gass  v.  Stin- 
son. 3  Sum.  005;  Fischer  v.  Hayes,  19  Blatch.  25;  S.  C,  0 
Fed.  Rip.  70;  Wooster  v.  Clark,  9  Fed.  Rep.  854;  Bischoff- 
6cheim  v  Ba  tzer,  10  Fed.  Rep.  1;  Thayer  v.  Swift,  Walk. 
Ch.  384;  Bachelor  v.  Nelson,  Walk.  Ch.  441);  Sargeant  v. 
National  Bank,  7  Rep.  231. 


232  GENERAL    EQUITY    RULES. 

TESTIMONY,  DE  BENE  ESSE. 
70 

After  any  bill  filed,  and  before  the  defendant  bath  answered 
the  same,  upon  affidavit  made  that  any  of  the  plaintiff's  wit- 
nesses are  aged  and  infirm,  or  going  out  of  the  country,  or  that 
any  of  them  is  a  single  witness  to  a  material  fact,  the  clerk  of  the 
court  shall,  as  of  course,  upon  the  application  of  the  plaintiff, 
issue  a  commission  to  such  commissioner  or  commissioners  as  a 
judge  of  the  court  may  direct,  to  take  the  examination  of  bucIi 
witness  or  witnesses  de  bene  esse,  upon  giving  due  notice  to  the 
adverse  party  of  the  time  and  place  of  taking  his  testimony. 

Eslava  v.  Mazange,  1  Wood  623";  Richter  v.  Union  Trust 
Co.,  115  U.  S.  209. 

FORM    OF    LAST  INTERROGATORY. 
71 

The  lust  interrogatory  in  the  written  interrogatories  to  take 
testimony,  now  commonly  in  use,  shall,  in  the  future,  be  altered 
and  stated  in  substance,  thus:  "  Do  you  know,  or  can  you  set 
forth,  any  other  matter  or  thing,  which  may  be  a  benefit  or  ad- 
vantage to  the  parties  at  issue  in  this  cause,  or  either  of  them,  or 
that  may  be  material  to  the  subject  of  this  your  examination,  or 
the  matters  in  question  in  this  cause?  if  yea,  set  forth  the  same 
fully  and  at  large  in  your  answer." 

Rimadesv.  Seliu,4  Wash.  C.  C.  715;  Richardson  v.  Golden, 
3  Wash.  C.  C.  109;  Dodge  v.  Israel,  4  Wash.  C.  C.  323. 

CROSS   BILL. 
72 

Where  a  defendant  in  equity  files  a  cross  bill  for  discovery 
only,  against  the  plaintiff  in  the  original  bill,  the  defendant  to 
the  original  bill  shall  first  answer  thereto,  before  the  original 
plaintiff  shall  be  compellable  to  answer  the  cross  bill.  The 
answer  of  the  original  plaintiff  to  such  cross  bill  may  be  read 
and  used  by  the  party  filing  the  cross  bill  at  the  hearing,  in  the 
same  manner,  and  under  the  same  restrictions  as  the  answer, 
praying  relief,  may  now  be  used  and  read. 

Allen  v.  Allen,  Hemp.  58;  Shields  v.  Barrow,  17  How. 
130;  Cross  v.  De  Valle,  1  Wall.  1;  Bronson  v.  LaC.  &  M.  R. 
It.  Co.,  2  Wall.  283;  Rubber  Co.  v.  Goodyear,  9  Wall.  837; 
Heath  v.  Erie  R'y  Co.,  9  Blatcli.  316;  Forbes  v.  R.  R.  Co., 


I  .   s.   SUPREME    OOUBT.  233 

2  Woods  323;  Putnam  v.  New  Albany,  4  Biss.  365;  Weaver 
v.  Alter,  3  Woods  152;  Young  v.  Pott,  4  Wash.  C.  C.  521; 
Carnochan  v.  Christie,  11  Wheat.  446;  Peay  v.  Schenck,  1 
Woolw.  175;  Brandon,  etc.,  Mfg  Co.  v.  Prime,  14  Blatch. 
371;  Moore  v.  Huntington.  17  Wall.  417;  Loewenstein  v. 
Glidewel),  5  Dill.  325;  Washington  Railroad  v.  Bradleys,  10 
Wall.  299. 

KEFERENCE    TO    AND    VROCEED1NOS    BEFORE    MASTERS. 
73 

Every  decree  for  an  account  of  the  personal  estate  of  a  tes- 
tator, or  intestate,  shall  contain  a  direction  to  the  master,  to 
whom  it  is  referred  to  take  the  same,  to  inquire  and  state  to 
the  court  what  parts,  if  any,  of  such  personal  estate  are  out- 
standing or  undisposed  of,  unless  the  court  shall  otherwise 
direct. 

Kelsey  v.  Hobby,  16  Peters  269;  Pendleton  v.  Evans 
Exrs..  4  Wash.  C.  C.  391;  Allen  v.  Blunt.  1  Blatch.  480;  St. 
Colombe  v.  U.  S.,  7  Peters  625;  Field  v.  Holland,  6  Cranch 
8;  Lawrence  v.  Dana,  4  Cliff.  6;  Jewett  v.  Cunard,  3  Wood 
&  M.  277;  Harding  v.  Handy,  11  Wheat.  103. 

74 
Whenever  any  reference  of  any  matter  is  made  to  a  master  to 
examine  and  report  thereon,  Ihe  party  at  whose  instance  and  for 
whose  benefit  the  reference  is  made,  shall  cause  the  same  to  be 
presented  to  the  master  for  a  hearing  on  or  before  the  next  rule 
day  succeeding  the  time  when  the  reference  was  made;  if  he 
shall  omit  to  do  so,  the  adverse  party  shall  be  at  liberty  forthwith 
to  cause  proceedings  to  be  had  before  the  master,  at  the  costs  of 
the  party  procuring  the  reference. 

75 
Upon  every  such  reference,  it  shall  be  the  duty  of  the  master, 
as  soon  as  he  reasonably  can,  after  the  same  is  brought  before 
him.  to  assign  a  time  and  place  for  proceedings  in  the  same,  and 
to  give  due  notice  thereof  to  each  of  the  parties  or  their  solici- 
tors; and  if  either  party  shall  fail  to  appear  at  the  time  and  place 
appointed,  the  master  shall  be  at  liberty  to  proceed  ex  parte,  or, 
in  his  discretion,  to  adjourn  the  examination  and  proceedings  to 
a  future  day,  giving  notice  to  the  absent  party  or  his  solicitor, 
of  such  adjournment;  and  it  shall  be  the  duty  of  the  master  to 
proceed  with  all  reasonable  diligence  in  every  such  reference, 


234  GENERAL    EQUITY    ROLES. 

and  with  the  least  practicable  delay,  and  either  party  shall  be  at 
liberty  to  apply  to  the  court,  or  a  judge  thereof,  for  an  order  to 
the  master  to  speed  the  proceedings  and  make  his  report,  and  to 
certify  to  the  court  or  judge  the  reasons  for  any  delay. 

76 
In  the  reports  made  by  the  master  to  the  court,  no  part  of  any 
state  of  facts,  charge,  affidavit,  deposition,  examination  or  an- 
swer, brought  in  or  used  before  them,  shall  be  stated  or  recited. 
But  such  stale  of  fact*,  ch  irge,  affidavit,  deposition,  examination 
or  answer  shall  be  identified,  specified  and  referred  to,  so  as  to 
inform  the  court  what  state  of  facts,  charge,  affidavit, deposition, 
examination,  or  answer,  was  so  brought  in  or  used. 

77 
The  master  shall  regulate  all  the  proceedings  in  every  hearing 
before  him,  upon  every  such  reference;  and  he  shall  have  full 
authority  to  examine  the  parties  in  the  cause  upon  oath,  touch- 
ing all  matters  contained  in  the  reference;  and  also  to  require 
the  production  of  all  books,  papers,  writings,  vouchers  and  other 
documents,  applicable  thereto;  and  also  to  examine,  on  oath, 
viva  voce,  all  witnesses  produced  by  the  parties  before  him,  and 
to  order  the  examination  of  other  witnesses  to  be  taken,  under  a 
commission  to  be  issued  upon  his  certificate,  from  the  clerk's 
office,  or  by  deposition,  according  to  the  acts  of  Congress,  or 
otherwise,  as  hereinafter  provided;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved  before 
him;  and  generally  to  do  all  other  acts  and  direct  all  other  in- 
quiries and  proceedings  in  the  matters  before  him,  which  he  may 
deem  necessary  and  proper  to  the  justice  and  merits  thereof,  and 
the  rights  of  the  parties. 

Foote  v.  Silsby,  3  Blatcb.  507;  Story  v.  Livingston,  18 
Peters  359;  Harding  v.  Handy,  11  Wheat.  103;  Wooster  v. 
Gumbiruner,  20  Fed.  Rep.  167;  Hatch  v.  Indianapolis  &  8. 
R.  Co.,  9  Fed.  Hep.  856. 

78 

Witnesses  who  live  within  the  district  may,  upon  due  notice 
to  the  opposite  party,  be  summoned  to  appear  before  the  com- 
missioner appointed  to  take  testimony,  or  before  a  master  or 
examiner  appointed  in  auy  cause,  by  subpoena  in  the  usual  form, 
which  may  be  issued  by  the  clerk  in  blank,  and  filled  up  by  the 
party  praying  the  same,  or  by  the  commissioner,  master  or  exam- 


U.  8.  SUPREME    COURT.  235 

iner  requiring  the  attendance  of  the  witnesses  at  the  time  and 
place  specified,  who  shall  be  allowed  for  attendance  the  same 
compensation  as  for  attendance  in  court;  and  if  any  witness  shall 
refuse  to  appear  or  to  give  evidence,  it  shall  be  deemed  a  con- 
tempt of  the  court,  which,  being  certified  to  the  clerk's  office  by 
the  commissioner,  master  or  examiner,  an  attachment  may  issue 
thereupon  by  order  of  the  court  or  of  any  judge  thereof,  in  the 
same  manner  as  if  the  contempt  were  for  not  attending  or  for 
refusing  to  give  testimony  in  the  court.  But  nothing  herein 
contained  shall  prevent  the  examination  of  witnesses  viva  voce 
when  produced  in  open  court,  if  the  court  shall,  in  its  discretion, 
deem  it  advisable. 

Erie  Rv.  Co.  v.  Heath,  8  Blatch.  413;  R.  R.  Co.  v.  Drew, 
8  Woods  692;  In  re  Clarke,  9  Blatch.  372;  Gass  v.  Stinson, 
2  Sum.  605:  Jenkins  v.  Eldridge,  3  Story  299;  see  also  Gen. 
Eq.  Rule  67. 

79 

All  parties  accounting  before  a  master,  shall  briDg  in  their  re- 
spective accounts  in  the  form  of  debtor  and  creditor;  and  any  of 
the  other  parties,  who  shall  not  be  satisfied  with  the  accounts  so 
brought  in,  shall  be  at  liberty  to  examine  the  accounting  party 
viva  voce,  or  upon  interrogatories,  in  the  master's  office,  or  by 
deposition,  as  the  master  shall  direct. 
Ransom  v.  Winn,  18  How.  295. 
80 

All  affidavits,  depositions  and  documents,  which  have  been 
previously  made,  read,  or  used  in  the  court,  upon  any  proceed- 
ing in  any  cause  or  matter,  may  be  used  before  the  master. 

81 

The  master  shall  be  at  liberty  to  examine  any  creditor  or  other 
person  coming  in  to  claim  before  him,  either  upon  written  inter- 
rogatories, or  viva  voce,  or  in  both  modes,  as  the  nature  of  the 
case  may  appear  to  him  to  require.  The  evidence  upon  such 
examination  shall  be  taken  down  by  the  master,  or  by  some  other 
person  by  his  order,  and  in  his  presence,  if  either  party  requires 
it,  in  order  that  the  same  may  be  used  by  the  court,  if  necessary. 

82 
The  circuit  courts  may  appoint  standing  masters  in  chancery 
in  their  respective  districts,  both  the  judges  concurring  in  the 
appointment;  and  they  may  also  appoint  a  master  pro  hac  vice  in 


236  GENERAL    EQUITY    RULES. 

any  particular  case.  The  compensation  to  be  allowed  to  every 
master  in  chancery  for  his  services,  in  any  particular  case,  shall 
be  fixed  by  the  circuit  court,  in  its  discretion,  having  regard  to 
all  the  circumstances  thereof;  and  the  compensation  shall  be 
charged  upon  and  borne  by  such  of  the  parties  in  the  cause  as 
the  court  shall  direct.  The  master  shall  not  retain  his  report  as 
security  for  his  compensation;  but  when  the  compensation  is 
allowed  by  the  court,  he  shall  be  entitled  to  an  attachment  for 
the  amount  against  the  party  who  is  ordered  to  pay  the  same,  if, 
upon  notice  thereof,  he  does  not  pay  it  within  the  time  prescribed 
by  the  court. 

Van  Hook  v.  Pendleton,  2  Blatch.  85;   Acts  of  Congress, 

1879,  ch.  183,  p.  415;  Frese  v.  Biedenfeld,    14  Blatch.  402; 

Myers  v.  Dunbar,  12  Blatch.  380. 

EXCEPTIONS  TO  MASTER'S  REPORT. 
83 
The  master,  as  soon  as  his  report  is  ready,  shall  return  the 
same  into  the  clerk's  office,  and  the  day  of  the  return  shall  be 
entered  by  the  clerk  in  the  order  book.  The  parties  shall  have 
one  month  from  the  time  of  filing  the  report,  to  file  exceptions 
thereto:  and  if  no  exceptions  are  within  that  period  filed  by 
either  party,  the  report  shall  stand  confirmed  on  the  next  rule 
day  after  the  month  is  expired.  If  exceptions  are  filed,  they 
shall  stand  for  hearing  before  the  court,  if  the  court  is  then  in 
session,  or  if  not,  then  at  the  next  sitting  of  the  court  which 
shall  be  held  thereafter  by  adjournment  or  otherwise. 

Troy  Iron  and  Nail  Fact,  v  Corning,  6  Bl.  C.  C.  328; 
Greene  v.  Bishop,  1  Cliff.  186;  Brockett  v.  Brockett,  3  How. 
691;  Ward  v.  Peck,  18  How.  289;  McMicken  v.  Perin,  18 
How.  507;  Story  v.  Livingston,  13  Pet  359;  Dexter  v.  Ar- 
nold, 2  Sum.  108;  Gordon  v.  Lewis,  2  Sum.  143;  Canal  Co. 
v.  Gordon,  6  Wall.  561;  Harding  v.  Handy,  11  Wheat.  103; 
Gaines  v.  New  Orleans.  1  Woods  104;  Stanton  v.  Al.  &  Chat. 
R.  R.  Co.,  2  Woods  506;  Mason  v.  Crosby,  3  W.  &  M.  258; 
St.  Colombe  v.  U.  S.,  7  Peters  625;  Foster  v.  Goddard,  1 
Black  506;  Chappedelaine  v.  Dechenaux,  4  Cranch  306; 
Turrill  v.  R.  R.  Co.,  5  Biss.  345;  Garretson  v.  Clark.  15 
Blatch.  70;  Oliver  v.  Piatt,  3  How.  334;  Cowdrey  v.  R.  R. 
Co.,  1  Woods  331;  Fischer  v.  Hayes,  16  Fed.  Rep.  469; 
Hatch  v.  Indianapolis  &  S.  R.  Co.,  9  Fed.  Rep.  856. 

84 

And  in  order  to  prevent  exceptions  to  reports  from  being  filed 
for  frivolous  causes,  or  for  mere  delay,  the  party  whose  excep- 


IT.  S.  8UPBEME    COURT.  237 

tions  are  overruled  shall  for  every  exception  overruled  pay  costs 
to  the  other  party,  and  for  every  exception  allowed  shall  be  en- 
titled to  costs — the  costs  to  be  fixed  in  each  case  by  the  court, 
by  a  standing  rule  of  the  circuit  court. 
Garretson  v   Clark,  17  Blatch.  256. 

DECREES. 
85 
Clerical  mistakes  in  decrees,  or  decretal  orders,  or  errors  aris- 
ing from  any  accidental  slip  or  omission,  may  at  any  time, 
before  an  actual  enrollment  thereof,  be  corrected  by  order  of 
the  court,  or  a  judge  thereof,  upon  petition,  with  the  form  or 
expense  of  a  rehearing. 

Dexter  v.  Arnold,  5  Mason  303;  Whiting  v.  U.  S.  Bank, 
t3Peters6;  Tiltou  v.  Barrel!,  1?  Fed.  Rep.  59;  Coleman  v. 
Neill,  11  Fed.  Rep.  461. 

86 

In  drawing  up  decrees  and  orders,  neither  the  bill,  nor  answer, 
nor  other  pleadings,  nor  any  part  thereof  nor  the  report  of  any 
master,  nor  any  other  prior  proceedings,  shall  be  recited  or 
stated  in  the  decree  or  order;  but  the  decree  and  order  shall 
begin  in  substance  as  follows:  "This  cause  came  on  to  be  heard 
(or  to  be  further  heard,  as  the  case  may  be)  at  this  term,  and 
was  argued  by  counsel;  and  thereupon,  upon  consideration 
thereof,  it  was  ordered  adjudged,  and  decreed  as  follows,  viz." 
[Here  insert  the  decree  or  order.] 

Whiting  v.  TJ.  S.  Bank,  13  Peters  16;  Putnam  v.  Day,  22 
Wall.  60;  Forgay  v.  Conrad,  6  How.  21;  R.  R.  Co.  v. 
Swasey,  23  Wall.  405. 

87 

GUARDIANS   AND   PROCHEIN    AMIS. 

Guardians  ad  litem  to  defend  a  suit  may  be  appointed  by  the 
court,  or  by  any  judge  thereof,  for  infants,  or  other  persons 
who  are  under  guardianship,  or  otherwise  incapable  to  sue  for 
themselves.  All  infants,  and  other  persons  so  incapable,  may 
sue  by  their  guardians,  if  any,  or  by  their  prochein  ami,  subject, 
however,  to  such  orders  as  the  court  may  direct  for  the  protec- 
tion of  infants  and  other  persons. 

Bank  of  U.  S.  v.  Ritchie.  8  Peters  128. 


238  GENERAL    EQUITY    RULES. 

88 
REHEAIUNG. 

Every  petition  for  a  rehearing  shall  contain  the  special  matter 
or  cause  on  which  such  rehearing  is  applied  for,  shall  be  signed 
by  counsel,  and  the  facts  therein  stated,  if  not  apparent  on  the 
record,  shall  be  verified  by  the  oath  of  the  party,  or  by  some 
other  person.  No  re-hearing  shall  be  granted  after  the  term, 
at  which  the  final  decree  of  the  court  shall  have  been  entered 
and  recorded,  if  an  appeal  lies  to  the  Supreme  Court.  But  if 
no  appeal  lies,  the  petition  may  be  admitted  at  any  time  before 
the  end  of  the  next  term  of  the  court,  in  the  discretion  of  the 
court. 

Clark  v.  Threlkeld,  2  Cr.  C.  C.  408;  Daniel  v.  Mitchell,  1 
Story  198;  Jenkins  v.  Eldredge,  3  Story  229;  Emerson  v. 
Davies,  1  W.  &  M.  21;  Browder  v.  McArthur,  7  Wheat.  58; 
Hunter  v.  Town  of  Marlboro.  2  W.  &  M.  169;  Bentley  v. 
Phelps,  3  W.  &  M.  403;  Tufts  v.  Tufts,  3  W.  &  M.  426; 
Roemer  v.  Simon,  91  U.  S.  149;  Baker  v.  Whiting.  1  Story 
218;  Giant  Powd.  Co.  v.  Cal.  V  P.  Co..  6  Saw.  509;  Scott 
v.  Blaine,  1  Bald.  287;  Scott  v.  Hore,  1  Hughes  103;  Ameri- 
can, etc..  Co.  v.  Slieldon,  18  Blatch.  50;  The  Collins  Co.  v. 
Coes,  8  Fed.  Rep.  519;  Hicks  v.  Ferdinand,  20  Fed.  Rep. 
Ill;  Hayes  v.  Dayton,  20  Fed.  Rep.  6u0:  Adair  v.  Thayer, 7 
Fed.  Rep  920;  Coburn  v.  Suroeder,  11  Fed.  Rep.  425;  New- 
man v.  Moody,  19  Fed.  Rep.  858;  Arnold  v.  Nye,  11  Mich. 
456. 

89 
The  circuit  court  (both  judges  concurring  therein)  may  make 
any  other  and  further  rules  and  regulations  for  the  practice, 
proceedings,  and  process,  mesne  and  final,  in  their  respective 
districts,  not  consistent  with  the  rules  hereby  prescribed,  in 
their  discretion,  and  from  time  to  time  alter  and  amend  the 
same. 

U.  S.  Bank  v.  White,  8  Pet.  262;  Phila,  etc.,  Co.  v.  Stim- 
son,  14  Peters  448;  Steam  S.  C.  Co.  v.  Jones,  13  Fed.  Rep. 
581;  Poultney  v.  Lafayette,  12  Peters  472;  Russell  v.  Mc- 
Lellan,  3  Wood  &  M.  157;  Jenkins  v.  Greenwald,  1  Bond 
127. 

00 

In  all  cases  where  the  rules  prescribed  by  this  court  or  by  the 
circuit  court  do  not  apply,  the  practice  of  the  circuit  court 
shall  be  regulated  by  the  present  practice  of  the  High  Court  of 
Chancery  in  England,   so  far  as  the  same  may  reasonably  be 


U.   S.   SUPREME    COURT.  239 

applied  consistently  with  the  local  circumstances  and  local  con- 
venience of  the  district  where  the  court  is  held,  not  as  positive 
rules,  but  as  furnishing  just  analogies  to  regulate  the  practice. 

Van  Hook  v.  Pendleton.  2  Bl.  C.  C.  85  Hubbard  v.  Turner, 
2  McLean  519;  Pomeroy  v.  Manin,  2  Paine  476;  Vattier  v. 
Hinde,  7  Pet.  253;  Livingston  v.  Slory,  9  Pet.  032;  Rhode 
Island  v.  Massachusetts,  14  Pet.  210;  Smith  v.  Burnham,  2 
Sum.  612;  Badger  v.  Badger.  1  Cliff.  237;  Lewis  v.  Shain- 
wald,  7  Saw.  403;  Boyle  v.  Zacbarie,  6  Peters  648;  Emerson 
v.  Davies,  1  Wood  and  M  21 ;  Lorillard  v.  Standard  Oil  Co., 
18  Blatch.  199;  Goodvear  v.  Prov.  Rub.  Co.,  2  Cliff.  351;  U. 
8.  v.  Parrott,  1  McAJl.  447;  Martindale  v.  Waas,  11  Fed. 
Rep.  551;  U.  S.  Bank  v.  White,  8  Peters  262. 

91 

Whenever,  under  these  rules,  an  oath  is  or  may  be  required  to 
be  taken,  the  party  may,  if  conscientiously  scrupulous  of  taking 
an  oath,  in  lieu  thereof  make  solemn  affirmation  to  the  truth  of 
the  facts  stated  by  him. 

92 

In  suits  in  equity  for  the  foreclosure  of  mortgage  in  the  circuit 
court  of  the  United  States,  or  in  any  court  of  the  Territories 
having  jurisdiction  of  the  same,  a  decree  may  be  rendered  for 
any  balance  that  may  be  found  due  to  the  complainant  over  and 
above  the  proceeds  of  the  sale  or  sales,  and  execution  may  issue 
for  the  collection  of  the  same,  as  is  provided  in  the  eighth  rule 
of  this  court,  regulating  the  equity  practice,  where  the  decree 
is  solely  for  the  payment  of  money. 

1  Wall.,  v. ;  2  Jones  on  Mortgages  574;  Moore  v.  Shaw,  15 
Hun  N.  Y.  428;  Boyce's  Ex'rs  v.  Grundy,  9  Peters  2S6; 
Howe  v.  Lemon,  37  Mich.  164;  White  v.  Zust,  28  N.  J.  Eq. 
107;  Lawrence  v.  Fellows,  Walk.  Ch.  468. 

93 

When  an  appeal  from  a  final  decree,  in  an  equity  suit,  granting 
or  dissolving  an  injunction,  is  allowed  by  a  justice  or  judge  who 
took  part  in  the  decision  of  the  cause,  he  may,  in  his  discretion, 
at  the  time  of  such  allowance,  make  an  order  suspending  or  mod- 
ifying the  injunction  during  the  pendency  of  the  appeal,  upon 
such  terms  as  to  bond-  or  otherwise  as  he  may  consider  proper 
for  the  security  of  the  rights  of  the  opposite  party. 

7  Otto,  vii.;  Leonard  v.  Ozark  Land  Co.,  115  U.  S.  465. 


240  GENERAL    EQUITY    RULES. 

94 

Every  bill  brought  by  one  or  more  stockholders  in  a  corpo- 
ration against  the  corporation  and  other  parties,  founded  on  a 
right  which  may  properly  be  asserted  by  the  corporation,  must 
be  verified  by  oath,  and  must  contain  an  allegation  that  the 
plaintiff  was  a  shareholder  at  the  time  of  the  transaction  of 
which  he  complains,  or  that  his  share  has  devolved  on  him  since 
by  operation  of  law;  and  that  the  suit  is  not  a  collusive  one  to 
confer  on  a  court  of  the  United  States  jurisdiction  of  a  case  of 
which  it  would  not  otherwise  have  cognizance.  It  must  also 
set  forth  with  particularity  the  efforts  of  the  plaintiff  to  secure 
such  action  as  he  desires  on  the  part  of  the  managing  directors 
or  trustees,  and,  if  necessary,  of  the  shareholders,  and  the  cause 
of  his  failure  to  obtain  such  action. 

14  Olio   ix  ;   Leo  v.   U.  P.  R  R.  Co.,  17  Fed.  Hep.  373; 
Dannineyer  v.  Coleman,  11  Fed.  Rep.  101. 


RULES 

OF  THE 

CIRCUIT  COURTS  OF  THE  UNITED  STATES 

FOB  THE 

DISTRICTS  OF  MICHIGAN, 

IN  EQUITY. 


Note. — For  authority  of  circuit  courts  to  make  rules  and  to  regulate 
practice  in  cases  not  provided  for  by  General  Equity  Rules,  see  General 
Equity  Rule  89,  and  R.  S.,  Sec.  918. 

1 

SERVICE   OP   COPIES. 

If  the  defendant  appears,  the  complainant  shall  serve  him 
with  a  copy  of  the  bill,  if  required,  within  twenty  days  after 
receiving  notice  of  such  appearance;  and  after  such  appearance, 
the  party  filing  any  pleading  or  proceeding  in  the  cause, 
whether  plaintiff  or  defendant,  shall,  at  the  time  of  filing  the 
same,  serve  a  copy  thereof  on  the  opposite  party,  or  his  attorney. 

2 

SECURITY   FOR   COSTS. 

Upon  the  commencement  in  this  court,  or  removal  thereto,"  of 
any  suit  or  proceeding  in  equity,  there  shall  be  paid  to  the 
clerk  by  the  party  so  commencing  or  removing  such  suit  or  pro- 
ceeding, advance  fees  to  the  sum  of  five  dollars. 

The  clerk  shall  require  of  all  non-resident  plaintiffs  of  this 
district  security  for  costs.  The  following  form  indorsed  on  the 
writ  or  declaration,  or  upon  a  separate  paper  entitled  and  filed  in 
the  cause,  may  substantially  be  pursued:  I  (A  B)  acknowledge 
myself  security  for  all  costs  for  which  the  plaintiff  may  become 
liable  in  this  suit." 

The  surety  shall  be  a  resident  of  this  district,  unless  the  court 
for  sufficient  cause  direct  the  acceptance  of  a  nonresident  as  such 
surety. 

16  [241] 


242  GENERAL  EQUITY  KULES. 

The  clerk  may,  in  his  discretion,  in  lieu  of  the  written  under- 
taking above  set  forth,  accept  as  such  security,  a  money  deposit 
of  fifty  dollars;  provided,  that  if  at  any  time  said  deposit  shall 
appear  to  the  clerk  inadequate  or  insufficient  security,  he  shall 
require  the  plaintiff  to  either  furnish  the  written  security  above 
provided  or  make  a  further  money  deposit. 

In  cases  removed  from  a  state  court  the  party  in  whose  behalf 
the  case  is  removed,  if  a  non-resident  of  the  district,  shall,  on 
filing  a  copy  of  the  record  in  such  suit,  give  security  for  costs  in 
like  manner  as  is  required  of  non  residents  in  cases  commenced 
in  this  court.  In  default  thereof  it  shall  be  competent  for  the 
opposite  party,  upon  the  usual  notice,  if  defendant,  to  have  the 
case  dismissed,  or  if  plaintiff,  to  have  the  same  remanded. 

If  the  plaintiff  or  defendant  in  any  suit  where  security  for 
costs  has  been  given,  as  above  provided,  shall  fail  or  neglect  to 
pay  any  costs  for  which  he  is  liable,  for  ten  clays  after  the  final 
determination  of  the  suit,  or  if  marshal's  or  clerk's  fees,  for  ten 
days  after  a  demand  for  the  same  by  such  officer,  the  person  to 
whom  such  costs  are  due  may  have  judgment  and  execution 
against  the  surety  for  the  amount  so  due,  upon  motion  filed  and 
ten  days'  notice  thereof,  in  writing,  to  such  surety. 

3 

ADMINISTRATION   OP  OATHS. 

Jurats  and  affidavits  to  be  used  in  this  court  may  be  verified 
before  the  clerk  of  any  court  of  record,  or  before  any  notary 
public;  provided,  however,  that  where  such  clerk  or  notary  is  a 
non  resident  of  this  district,  his  signature  shall  be  attested  by 
his  official  seal. 

Gen.  Eq.  Rules,  59,  91. 

4 

FRAME  OF  BILLS  AND  ANSWERS. 

Every  bill  of  complaint  shall  contain,  as  concisely  as  may  be, 
a  narrative  of  the  material  facts,  matters  and  circumstances  on 
which  the  complainant  relies,  such  narrative  being  divided  into 
paragraphs,  numbered  consecutively,  and  each  paragraph  con- 
taining, as  nearly  as  may  be,  a  separate  and  distinct  matter  or 
allegation,  and  shall  pray  specifically  for  the  relief  which  the 
complainant  may  conceive  himself  entitled  to,  and  also  for  gen- 
eral relief;  and  the  prayer  shall  be  subdivided  into  paragraphs 


U.  S.  CIRCUIT   COURTS.  243 

numbered  consecutively,  each  praying  separate  relief,  following, 
as  nearly  as  may  be,  the  form  set  forth  by  the  English  General 
Order  No.  14,  Daniel.  Ch.  Prac,  page  319.  Every  answer  shall 
contain  not  only  the  defendant's  answer  to  the  several  paragraphs 
of  the  bill,  but,  thereafter,  such  statement  of  his  case  as  he  may 
deem  it  necessary  or  advisable  to  make;  and  such  answer  shall 
also  be  divided  into  paragraphs,  numbered  consecutively,  each 
paragraph  containing,  as  nearly  as  may  be,  a  separate  and  dis- 
tinct allegation;  and  such  answer  must  be  full  and  explicit  and 
distinct  to  each  separate  paragraph  in  the  bill,  in  the  same  order 
as  numbered  in  the  bill,  before  it  enters  upon  any  statement  of 
the  defendant's  case;  and  the  common  commencing  clauses, 
reserving  exceptions,  and  containing  protestations,  and  the  com- 
mon concluding  clause,  denying  combination,  and  the  general 
traverse,  and  the  common  repetitions,  "This  defendant,  further 
answering,  saith,"  and  the  like,  shall  be  omitted. 

Gen.  Eq.  Rules,  20,  21,  22,  23,  24,  26,  39,  41,  42,  43,  44, 
59,  93. 

5 
FORECLOSURE   BILLS. 

In  a  bill  for  foreclosure  or  satisfaction  of  a  mortgage,  it  shall 
not  be  necessary  or  allowable  to  set  out  at  length  the  rights  and 
interests  of  the  several  defendants  who  are  purchasers  of,  or  who 
have  liens  on,  the  equity  of  redemption  in  the  mortgaged 
premises,  subsequent  to  the  registry  or  recording  of  the  com- 
plainant's mortgage,  and  who  claim  no  right  in  opposition 
thereto;  but  it  shall  be  sufficient  for  the  complainant,  after  set- 
ting out  his  own  right  and  interest  in  the  premises,  to  state 
generally  that  such  defendants  have,  or  claim,  some  interest  in 
the  premises,  as  subsequent  purchasers  or  incumbrancers,  or 
otherwise;  and  if  any  such  defendants  are,  by  the  misstatements 
of  the  complainant  in  his  bill,  or  otherwise,  unnecessarily  com- 
pelled to  put  in  an  answer  to  protect  their  rights,  the  costs 
occasioned  thereby  may,  in  the  discretion  of  the  court,  be 
charged  on  the  complainant  personally;  and  if  such  defendants 
unnecessarily  put  in  answer  to  such  bill,  the  extra  costs  occa- 
sioned by  such  answer  may  be  charged  on  the  defendants  per- 
sonally, in  the  discretion  of  the  court. 


244  GENERAL  EQUITY  RULES. 

6 

creditors'  bills. 
When  a  creditor  by  judgment,  or  decree,  files  a  bill  in  this 
court  against  his  debtor  to  obtain  satisfaction  out  of  the  equitable 
interests,  things  in  action,  or  other  property  of  the  latter,  after 
the  return  of  an  execution  unsatisfied,  he  shall  state  in  such  bill 
the  true  sum  actually  and  equitably  due  on  such  judgment  or 
decree,  over  and  above  all  just  claims  of  defendant  by  way  of 
set-off,  or  otherwise.  The  bill  shall  likewise  contain  an  allega- 
tion that  the  same  is  not  exhibited  by  collusion  with  the  defend- 
ant, or  for  the  purpose  of  protecting  the  property  or  effects  of 
the  debtor,  against  the  claims  of  other  creditors,  but  for  the  sole 
purpose  of  compelling  payment  and  satisfaction  of  complainant's 
own  debt. 

7 

VERIFICATION   OF   CREDITORS'   BILL. 

Every  such  creditor's  bill  shall  be  verified  by  the  oath  of  the 
complainant,  or  of  his  agent  or  attorney :  or  the  material  allega- 
tions in  the  bill  as  to  the  recovery  of  the  judgment  or  decree, 
the  return  of  execution  unsatisfied,  the  amount  justly  due 
thereon,  and  that  the  bill  is  not  exhibited  by  collusion  with  the 
defendant,  but  for  the  sole  purpose  of  compelling  payment  and 
satisfaction  of  the  complainant's  own  debt,  shall  be  established 
by  affidavit.  The  charging  part  of  the  bill  shall  not  be  consid- 
ered as  sworn  to  unless  it  is  expressly  so  stated  in  the  jurat. 

Gen.  Eq.  Kule  95. 

8 

RECEIVERS  IN   CREDITORS'    SUITS. 

Every  receiver  of  the  property  and  effects  of  the  debtor, 
appointed  in  a  suit  upon  a  creditor's  bill,  shall,  unless  restricted 
by  the  special  order  of  the  court,  have  general  power  and 
authority  to  sue  for  and  collect  all  the  debts,  demands  and  rents 
belonging  to  such  debtor,  and  to  compromise  and  settle  such  as 
are  unsafe  and  of  a  doubtful  character.  He  may  also  sue  in  the 
name  of  the  debtor  where  it  is  necessary  or  proper  for  him  to  do 
so,  and  he  may  apply  for  and  obtain  an  order  of  course  that  the 
tenants  of  any  real  estate  belonging  to  the  debtor,  or  of  which 
he  is  entitled  to  the  rents  or  profits,  attorn  to  such  receiver  and 
pay  their  reuts  to  him.  He  shall  also  be  permitted  to  make 
leases  from  time  to  time,  as  may  be  necessary,  for  terms  not 


U.  8.  CIRCUIT   COURTS.  245 

exceeding  one  year.  And  it  shall  be  his  duty,  without  any 
unreasonable  delay,  to  convert  all  the  personal  estate  and  effects 
into  money;  but  he  shall  not  sell  any  real  estate  of  the  debtor, 
without  the  special  order  of  the  court.  He  is  not  to  be  allowed 
for  the  costs  of  any  suit  brought  by  him  against  an  insolvent 
from  whom  he  is  unable  to  collect  his  costs,  unless  such  suit  is 
brought  by  order  of  the  court,  or  by  the  consent  of  all  persons 
interested  in  the  funds  in  his  Lands.  But  he  may  sell  such  des- 
perate debts,  and  all  other  doubtful  claims  to  personal  property, 
at  public  auction,  giving  at  least  ten  days'  notice  of  the  time  and 
place  of  such  sale. 

De  Visser  v.  Blackstone,  6  Bl.  C.  C.  235. 
9 
DUTIES   OP   RECEIVERS. 

Where  several  bills  are  riled  by  different  creditors  against  the 
same  debtor,  no  more  than  one  receiver  of  his  property  and 
effects  shall  be  appointed,  unless  the  first  appointment  has  been 
obtained  by  fraud  or  collusion,  or  unless  the  receiver  is  an  im- 
proper person  to  execute  the  trust.  The  receiver  shall'  give 
security  sufficient  to  cover  the  whole  property  and  effects  of  the 
debtor  which  may  come  in  his  hands  by  virtue  of  his  office;  and 
he  shall  hold  such  property  and  effects  for  the  benefit  of  all 
creditors  who  have  commenced,  or  shall  commence,  similar  suits 
during  the  continuance  of  his  trust,  to  be  disposed  of  according 
to  their  legal  or  equitable  priorities.  He  shall  not  pay  over  the 
funds  in  his  hands  to  the  parties,  or  to  any  other  person,  without 
being  specially  authorized  to  do  so  by  an  order  or  decree  by  the 
court;  nor  shall  he  be  discharged  from  his  trust  without  a  special 
order,  to  be  obtained  upon  a  written  consent  by  all  the  parties 
interested  in  the  property  in  his  hands,  or  upon  due  notice  of 
the' application. 

10 

INJUNCTION   UPON    CREDITORS'   BILLS. 

No  injunction  issued  upon  any  such  creditor's  bill  shall  be 
construed  to  prevent  the  debtor  from  receiving  and  applying  the 
proceeds  of  his  subsequent  earnings  to  the  support  of  himself  or 
of  his  family,  or  to  defray  the  expenses  of  the  suit,  or  to  prevent 
him  from  complying  with  any  orde'-  of  this  court,  made  in  any 
other  cause,  to  assign  and  deliver  his  property  and  effects  to  a 


246  GENERAL  EQUITY  KULES. 

receiver;  or  to  restrain  bim  from  making  the  necessary  assign- 
ment to  obtain  bis  discbarge  under  the  insolvent  laws,  unless  an 
express  provision  to  that  effect  is  contained  in  the  injunction. 

11 

ORDER  FOR   RECEIVERS. 

An  injunction  may  be  allowed  and  a  receiver  appointed  in  any 
stage  of  the  cause,  either  on  stipulation  or  on  motion.  The  court 
may  appoint  such  receiver,  or  may  make  an  order  referring  it  to 
a  master  to  appoint  a  receiver  with  the  usual  powers,  and  to  take 
from  him  the  requisite  security.  The  order  shall  also  direct  the 
defendant  to  assign,  transfer,  convey,  and  deliver  over  to  the 
receiver,  on  oath,  under  the  direction  of  the  master,  all  his 
property,  equitable  interests,  things  in  action,  and  effects, 
and  all  notes,  bonds,  mortgages,  deeds,  books  of  accounts, 
contracts,  papers,  evidences,  and  securities  relating  to  the  same; 
and  that  he  appear  before  the  master  from  time  to  time,  and 
produce  such  books  and  papers,  and  submit  to  such  examination, 
on  oath,  as  the  master  shall  direct,  in  relation  to  any  matter 
which  he  might  be  legally  required  to  disclose.  The  complain- 
ant shall  also  be  at  liberty  to  examine  witnesses  before  the  mas- 
ter as  to  the  property  of  the  defendant,  or  as  to  any  other  matter 
charged  in  the  bill  and  not  admitted  by  the  defendant. 

12 

DUTIES   OP  MASTERS  AND   EXAMINERS. 

That  such  masters'  and  examiners  in  chancery  as  may  be  or 
have  been  appointed  by  this  court,  shall  perform  all  duties  which, 
according  to  law  and  the  practice  of  courts  of  chancery,  apper- 
tain to  the  office,  in  all  causes  depending  on  the  equity  side  of 
this  court;  and  they  shall  be  entitled  to  such  fees  and  charges 
for  their  services  as  are  prescribed  by  the  statutes  of  Michigan, 
or  which  may  be  allowed  by  this  court.  And  a  master  or  mar- 
shal making  sale  under  an  order  or  decree  shall  be  entitled  to 
commission  on  the  proceeds  thereof  as  follows:  On  the  first 
$500,  two  per  cent. ;  on  the  next  $500,  one  and  one-half  per  cent. ; 
on  the  next  $4,000,  one  per  cent.,  and  on  the  excess  over  $5,000, 
one-half  of  one  per  cent.,  not  exceeding  in  all  $250.  And  in 
case  the  master  shall  be  required  to  make  sale  under  any  order 
or  decree,  or  examine  witnesses  at  a  place  distant  from  his  resi- 
dence, he  shall  be  allowed  his  necessary  and  reasonable  expenses 


U.  S.  CIRCUIT   COURTS.  247 

incurred  attending  such  sale  or  examining  such  witnesses,  and  a 
reasonable  remuneration  for  his  time,  to  be  fixed  by  the  court, 
for  going  to,  remaining  at,  and  returning  from  such  place. 

13 
SERVICE   ON  NON-RESIDENT   SOLICITORS. 

In  all  cases  where  opposing  solicitors  reside  in  different  towns, 

cities  or  villages,  service  of  notices  or  other  papers  may  be  made 

by  depositing  them  in  the  postofflce  directed  to  the  solicitor,  or 

party  on  whom  service  is  to  be  made,  at  his  place  of  residence, 

to  be  ascertained  according  to  the  best  information  of  the  person 

making  the  service. 

14 

WAIVER   OP   OATH. 

The  complainant  may  in  his  bill  waive  the  necessity  of  defen- 
dant's answer  being  put  in  on  oath,  in  pursuance  of  section  6621 
of  Howell's  Annotated  Statutes  of  this  State,  and  in  such  case 
the  answer  shall  have  no  greater  force  as  evidence  than  the  bill. 

Baker  v.  Biddle,  Bald.  407;  Chace  v.  Holmes,  2  Gray  433; 
Armstrong  v.  Scott,  3  Greene  433;  Patterson  v.  Gaines,  6 
How.  550;  Clements  v.  Moore,  6  Wall.  314;  Bronson  v. 
Green,  Walk.  Ch.  486. 

15 

PINAL  RECORD  AND  ENROLLMENT. 

A  record  of  everjr  suit  finally  determined  in  equity  shall  be 
made  in  the  manner  provided  by  section  750  of  the  Revised 
Statutes. 

Upon  the  written  request  of  the  solicitor  for  either  party,  duly 
filed,  the  clerk  shall  attach  together  the  bill,  pleadings  and  other 
papers  in  the  cause,  with  the  final  decree,  and  annex  thereto  his 
certificate  under  the  seal  of  the  court,  of  the  date  and  at  whose 
request  the  same  was  done,  and  file  the  same  in  his  office. 

R.  S.,  sec.  750;  How.  Mich.  Stat.,  sees.  6648-6649;  Mar- 
tindale  v.  Waas,  11  Fed.  Rep.  551 ;  Steam  Stone  Cutter  Co. 
v.  Jones,  13  Fed.  Rep.  567. 

16 

DECREES  PRO   CONPESSO. 

When  the  defendant  having  been  served  with  process,  as  pro- 
vided by  the  15th  Gen.  Eq.  rule,  does  not  appear  as  required  by 
the  17th  Gen.  Eq.  rule,  a  decree  pro  confesso  under  the  18th 
Gen.  Eq.  rule  may  be  entered  against  him. 


248  GENERAL  EQUITY  RULES. 

17 
NOTICES  OP  MOTIONS. 

Like  notice  shall  be  given  of  the  argument  of  special  motions, 
as  is  required  by  the  rules  of  this  court,  in  cases  of  law,  and 
such  notice  shall  be  addressed  and  served  in  the  manner  pre- 
scribed in  these  rules. 

Law  Rules,  2,  7. 

18 

NOTICES  OF  HEARING. 

A  notice  of  hearing  of  every  case  of  issue  upon  pleadings  and 
proofs  shall  be  given  at  least  ten  days  before  the  first  day  of  the 
term,  and  a  note  of  issue  of  every  such  case  shall  at  the  same 
time  be  filed  with  the  clerk;  provided,  that  where  the  time  for 
taking  proofs  in  any  case  shall  expire  after  the  first  day  of  the 
term,  or  within  ten  days  before  said  first  day,  such  case  may  be 
noticed  for  hearing  during  the  term;  and  after  the  lapse  of  ten 
days  from  the  giving  of  such  notice,  on  filing  due  proof  of  ser- 
vice of  notice,  such  case  shall  be  placed  by  the  clerk  on  the 
chancery  docket  for  the  term,  at  the  foot  of  the  docket,  and  shall 
stand  for  hearing  at  any  time  before  said  docket  shall  have  been 
finally  called  and  disposed  of.  Issues  of  law  may  be  called  up 
at  any  time  upon  five  days'  notice. 

19 
PRINTING   RECORDS. 

Any  judge  holding  the  circuit  court  may,  upon  the  application 
of  either  party,  or  upon  his  own  motion,  enter  an  order  in  any 
case  in  equity  standing  for  final  hearing  in  said  court  upon  plead- 
ings and  proofs,  requiring  the  pleadings  and  proofs  in  such  case, 
or  the  material  portion  thereof,  to  be  printed,  and  thereupon 
each  party  shall  cause  to  be  printed  all  the  pleadings  of,  and 
proofs  taken  by,  such  party  in  such  cause,  or  the  material  por- 
tion thereof,  and  shall  deliver  Ihree  printed  copies  of  such  plead- 
ings and  proofs  to  the  opposite  party  at  least  eight  days  before 
the  hearing  of  such  cause,  and  three  copies  to  the  clerk  on  the 
hearing  for  the  use  of  the  court. 

The  order  provided  for  by  this  rule  may  be  entered  as  of  course 
by  the  clerk  upon  filing  the  written  consent  of  the  solicitors  for 
all  parties  thereto. 

A  party  recovering  costs  shall  be  entitled  to  tax  against  the 


U.  S.  CIRCUIT   COURTS.  249 

opposite  party  his  actual  disbursements  for  all  printing  required 
to  be  done  by  him  under  this  rule. 

20 

GENERAL  RULE  FOR  THE  HEARING  AND  ARGUMENT  OF  CASES. 

Preparatory  to  the  argument  of  a  case  other  than  in  jur}'  trials, 
counsel  for  the  respective  parties  are  required  to  furnish  to  the 
court,  printed,  or  plainly  written,  and  in  the  order  following: 

1.  The  legal  questions  of  the  cuse. 

2.  The  nature  of  the  case,  briefly  stated. 

8.  The  relevant  and  material  facts,  in  numbered  paragraphs, 
together  with  the  points  made,  and  the  authorities  cited  in  sup- 
port of  them  arranged  under  the  respective  points. 

4.  Abstracts  of  pleadings  and  proofs,  so  far  as  material  and 
relevant,  preserving  the  numbering  of  the  para-graphs  of  the 
pleadings,  and  folioing  the  proofs. 

It  will  greatly  facilitate  the  argument  of  the  legal  propositions 
of  a  case  if  counsel,  before  citing  authorities,  will  first  state  legal 
propositions  insisted  upon;  then  give  the  authority;  next  state 
the  point  decided  in  the  cited  case,  and  then  the  facts  upon 
which  the  ruling  is  based.  Finally  read  only  the  language  of 
the  court  in  deciding  the  point;  when  more  is  desired  the  court 
will  indicate  it. 

Abstracts  of  the  material  testimony  generally  give  all  that  is 
necessary  to  an  understanding  of  the  case  upon  the  facts.  The 
original  testimony  can  be  read  from  when  essential  to  a  proper 
understanding  of  it,  or  where  the  accuracy  of  the  abstract  i& 
questioned. 

21 

VERIFICATION   OF   BILLS. 

That  bills  in  equity  may  be  verified  by  the  agent  or  solicitor 
for  the  complainant: 

1.  When  the  party  is  at  the  time  absent  from  the  district. 

2.  When  the  facts  are  within  the  personal  knowledge  of  the 
agent  or  solicitor. 


INDEX  TO  EQUITY  RULES. 


(C.  C,  Circuit  Court.) 


Abatement,  Rule 

in  case  of,  bill  of  revivor  may 

be  filed 56 

Account, 

decree  for,  what  to  contain 73 

examination  of  party  account- 
ing       79 

Admissions, 

by  failure  to  deny 38 

Advance  Fees, 

to  be  paid  to  clerk C.  C.        2 

Affidavit, 

for  writ  of  attachment 5 

to  set  aside  decree  by  default. .      19 

to  plea  or  demurrer 31 

when  may  be  used  before  mas- 
ter       80 

Affirmation, 
verification  of  pleadings  by,  in- 
stead of  oath 91 

Agknt, 
when  bill  may  be  verified  by, 

C.  C.  21,  95 
Amendment, 

of  bill,  when  allowed 28-30 

by  order  of  court 29 

when  to  be  deemed  waived 30 

upon  order  sustaining  plea  or 

demurrer 35 

after  answer  filed 45 

adding  new  parties 52 

of  answer,  when  allowed     ....      60 

upon  exceptions  filed 63 

of  decree 85 

to  rules  of  Circuit  Court 89 

Answer, 

when  to  be  filed 18 

motion  to  enlarge  time  for 19 

copy  of,  to  be  served  on  plain- 
tiff  C.  C.        1 

attachment  to  compel 18-64 

pro  confess-o  for  want  of . . .   18,  19,  34 

waiver,  of  sworn C.  C.      14 

rule  that  defendant  shall  an- 
swer fully,  when  not  to  apply,      39 
matters  in  bar  or  on  the  merits 
which  ought  to  be  taken  ad- 
vantage of  by  plea,  defendant 

may  answer  to 39 

interrogatories  to  be  answered, 

to  be  noted  in  bill 41,  42 

what  interrogatories  defendant 

may  decline  to  answer 44 

new  or  supplemental  when 46 

[250] 


Answer— Continued.  Rule 

suggestion  of  defect  of  parties 

by 52 

effect  of  omission  to  set  down 

objection  for  argument 52 

court  at  liberty  to  dismiss  bill..      52 

before  whom  to  be  sworn 59 

amendment  of,  when  allowed  .      60 
exceptions  to,  and  proceedings 

thereon 61-65 

reference  to  master  for  scan- 
dal, etc 27 

to  te  deemed  sufficient  unless 

excepted  to. 61.  63,  66 

amendment   of,    upon    excep- 
tions filed 63 

frame  of C.  C.        4 

to  be  divided  into  paragraphs, 

CO.        4 
upon  overruling  of  plea  or  de- 
murrer       34 

separate,  costs  t hereon.. C.  C.  5      62 

taxable  costs  for 25 

new    or    supplemental,     after 

amended  bill 46 

remedy  of  plaintiff  on  default,      64 
objection  to  bill  as  defective  for 

want  of  parties    52 

special  replications  to,  not  ne- 
cessary ....  45 

to  original  bill  to  be  filed  before 

answer  to  cross  bill 71-72 

Appearance, 
when  and  how  to  be  entered. . .       17 
memorandum  of  subpoena  for 
defendant  to  enter. . .  ...       12 

wh^n  party  need  not  appear. . .      54 

injunction  on  failure  of 55 

Appeal, 
injunction  may  be  suspended 

or  modified 93 

Argument, 

on  plea  33 

on  objection  for  want  of  parties      52 

printed,  how  prepared C.  C.      20 

Arrest. 

of  defendant  on  default. 18 

Assistance, 

writ  of,  to  enforce  decree 7-9 

Attachment. 

to  enforce  decree 7-8 

to  compel  answer  18 

to  compel  further  answer 64 

to  collect  master's  fees 82 


[JNDEX    TO    EQUITY    RULES. 


251 


Attorney  and  Counsel,  Rule 

signature  to  bill 24 

Bill, 
court  always  open  for  filing:  of,        1 
must  be  filed  before  subpoena 

issues 11 

upon  filing  of,  process  to  issue 

as  of  course 12 

frame  of S-  C.  20-25;  C.  C.        4 

to  be  divided  iuto  paragraphs. .        4 

when  taken  pro  confesso 18 

decree  on  default 19 

introductory  part  what  to  state      20 
confederacy    and    jurisdiction 
clauses   and    charging    part 

may  be  omitted 21 

may  waive  necessity  of  answer 

under  oath 0.  C.      14 

stating  part,  rule  in  regard  to. .      21 

prayer,  form  of 21 

injunction  and  ne  exeat  regno 

to  be  specially  prayed  f ><r  . . .  21 
as  to  parties  on'  of  jurisdiction,  22 
but  need  not   be  repeated   in 

prayer  for  process 23 

to  have  signature  of  counsel. . .      24 
to  state  reasons  when  necessary 

persons  not  made  parties 22 

prayer  of,  in  last  case 22 

prayer   for   process,    what   to 

state 23 

verification  of,  when  party  ab- 
sent from  district C  C.      21 

when     the     facts     within 
knowledge    of   agent    or 

solicitor C.  C.      21 

when  may  be  verified  by  solici- 
tor or  agent 95 

interrogatories,    how     divided 

and  numbered 41 

form  of  last  interrogatory 71 

interrogatories  to  be  auswered, 

to  be  noted 41,  42 

introduction    to    interrogatory 

part  of 43 

taken  pro  confesso 18,  19.  64 

exceptions  to 26,27 

reference  to  master  upon  ex- 

ceptioi  s 26 

amendment  of,  when  allowed  .28-30 
amendments  by  leave  of  c<>urt,      29 
taken  pro  confesso  on  demur- 
rer overruled 34 

after  answer  filed 44 

upon  sustaining  plea  or  demur- 
rer       35 

parties  to  (see  parties) 47-53 

trustees,  etc.,  as  parties 49 

heir,  when  necessary  party....       50 

joint  dehti  -rs  as  parties 51 

nominal  parties  to 54 

objection  to,   as  defective  for 

want  of  parties 52,  53 

dismissal  of,  as  defective  for 
want  of  parties 52 


|  Bill— Continued.  Rule 
I     dismissal  of,  for  want  of  repli- 
cation     66 

for  not  replying  to  plea,  etc,      38 

of  revivor 56-58 

supplemental 57,  58 

cross 72 

for  foreclosure  of  mortgage,  92; 

C.  C.        5 
creditors  (see  creditors'1  bill) . . 

C.  C.    6-8 
copy  of,   to  be  served  on  de- 
fendant appearing. C.  C        1 

taxable  costs  for 15 

by  stockholders  in  corporation,      94 

what  to  contain 94 

Certificate  of  Counsel, 

to  bill 24 

to  plea  or  demur  er 31 

Cestuis  Qua  Trust, 

when  to  be  made  parties. . .  49 

Chambers, 

powers  of  judge  at 3 

Charging  Part, 

may  be  omitted  in  bill 21 

Circuit  Court, 

when  open 1 

may  appoint  standing  masters,      82 

\     compensation  of  master 82 

may  make  rules 89 

Circuit  Judges, 
may  make  orders  in  vacation. .        3 
!     may  abridge  time  for  notices. .        4 
'  Citizenship. 

j     of  parties  to  be  stated  in  intro- 
ductory part  of  bill 20 

Clerk, 
to  be  in  his  office  on  rule  days, 

etc 2 

to    enter    motions,    rules    and 

orders 4 

what  motions  and  orders  grant-  ■ 

able  by 5 

duty    when  papers  in  foreign 

language 11 

te  enter  appearance  of  defend- 
ant         17 

when  to  name  commissioners. .      67 
to    is^ue    blank    subpcen;is    to 

master 78 

may  charge  advance  fee.  .C.  C.        2 
may  take  money  deposit  in  lieu 

of  written  security C.  C.        2 

may  have  judgment  and  execu- 
tion for  costs C.  C.        2 

shall  make  final  record.     C.  C.      15 
Clerk's  Office, 

to  be  open  on  rule  days 2 

authority  of  judge  to  grant  mo- 
tions at 3 

motions  made  at,  to  be  entered 

in  order  book 4 

Commissions, 

to  take  testimony 67 

who  to  name  commissioners. . .      67 


252 


INDEX    TO    EQUITY    RULES. 


Commissions— Continued.  Rule 

publications  of  testimony  taken 

by • 67 

to  take  testimony  de  bene  esse,      7o 
Commissioners, 

by  whom  appointed 67 

transmission  of  depositions  ...      67 

clerk  to  issue  subpoenas  for 78 

compensation  of  masters 82 

compulsory  process 7 

Confederacy  Clause, 

may  be  omitted  in  bill 21 

Copies, 
of  pleadings  to  be  served  on  op- 
posite party.   C.  C.         1 

of  amended  bill  to  be  served  on 

defendant 28 

Corporation, 
bill  by  stockholders,  what  to 

contain 94 

Costs, 

security  for C.  C.        2 

money  deposit  for C.  C.        2 

clerk  and  marshal  may  have 

execution  for C.  C.        2 

proceeding  on  failure  to  give 

security C.  C.        2 

for  printing C.  O.      21 

upon  setting  aside  pro  confesso      18 

taxable  for  bill  and  answer 25 

to    nominal    defendant,    com- 
pelled to  answer 54 

to  defendant  upon  sustaining 

exceptions  to  bill 26 

to  plaintiff  upon  overruling  ex- 
ceptions to  bill. . ". 26 

to    plaintiff    upon    overruling 

plea  or  demurrer 34 

to  defendant  upon  sustaining 

plea  or  demurrer 35 

on  amendment  of  bill 45 

when  same  solicitor  appears  for 

several  defendants 63 

upon  overruling  exceptions  to 

answers 66 

on  neglect  to  present  reference 

to  master 74 

upon  overruling  exceptions  to 

master's  report 84 

Counsel, 

bill  to  have  signature  of 24 

certificate  of,  to  plea  or  demur- 
rer       31 

Courts, 
always  open  for    filing  plead- 
ings, etc 1 

Creditors'  Bill, 

what  to  state C.  C.    6,  7 

to  be  verified  by  oath C.  C.        7 

rights  and  duties  of    receiver 

on ('.  C.    8,  9 

injunction,  effect  of C.  CIO,  11 

Cross  Bill, 
proceedings  upon 72 


Cross  Bill— Continued.  Rule 
-before  plaintiff  to  answer,  de- 
fendant to  original  bill  to  an- 
swer        72 

Death  of  a  Pariy, 

bill  of  revivor  may  be  filed 56 

De  Bfne  Esse, 

taking  of  testimony 70 

Df.crek, 

form  of 86 

clerical  mistakes.how  remedied  85 
for  specific  performance',  what 

to  state 8 

how  enforced 8 

for  payment  of  money,  how  en- 
forced         8 

for  delivery  of  possession,  how 

enforced .   9 

pro  confesso 18:  C.  C.      16 

when  absolute 19 

motion  to  set  aside  terms  of...  19 
not   to  prejudice  persons  not 

parties 47, 48 

saving  rights  of  absent  parties.  53 
for  accounting  to  contain  order 

of  reference  73 

correction  of  clerical  mistakes,      85 

what  not  to  contain 86 

form  of  introductory  part 86 

in  foreclosure  suits 92 

final  record C.  C.      15 

enrollment  of C.  C.      15 

Deeds, 
when  deemed  admitted  by  con- 
sent        13 

Default, 
effect  of  failure  to  appear  and 

answer 18 

failure  to  reply  to  plea  in  abate- 
ment       38 

of  failure   to  answer    .  upple- 

mental  bill 46 

effect  of  on  prayer  for  injunc- 
tion        55 

Demurrer, 

time  for  filing 18,32 

to  bill,  to  have  certificate  of 
counsel,  and  affidavit  at- 
tached        31 

may  be  to  part  or  whole  bill ...  32 
setting  down  of,  for  argument,  33 
if  overruled,  plaintiff  to  answer,      34 

costs  upon  overruling  of 34 

amendment  of  bill  upon  order 

sustaining . .      35 

costs  upon  order  sustaining 35 

good  though  not  covering  all  of 

bill  subject  to 36 

good     though    answer    covers 

same  matter 37 

when  truth  of  admitted 38 

interrogatories  subject  to,  need 

not  be  answered 44 

to  supplemental  bill 57 

how  authenticated 67 


INDEX    TO    EQUITY    KULES. 


253 


Deposition,  Rule 

taking  of  testimony  by 68 

de  bene  esse 70 

what  used  before  master 80 

Dismissal, 
for  omission  to  reply  to  plea. . .      38 
of  bill  for  want  of  proper  par- 
ties        52 

for  want  of  replication. . .      66 
for  want  of  security  for 

costs C.  C.        2 

Discovery, 
cross  bill  for,  need  not  be  an- 
swered before  defendant  an- 
swers original  bill 72 

Docket, 

when  cases  to  be  placed  on 18 

Enrollment, 

of  decrees  and  proceedings, C.C.      15 
Evidencr, 
deeds,  when  deemed  admitted 

by  consent 13 

answer  when  not 41 

testimony,  how  taken 67 

what  admitted  before  master. .      80 

how  taken 81 

Examination, 

of  party  as  to  accounts 79 

of  creditor  or  claimant, 81 

Examiners, 
duties   and   compensation   of, 

C.  C.      12 

taking  testimony  before 66 

evidence  to  be  taken  before 67 

Exception, 

to  bills  for  scandal,  etc 26,  27 

when  to  be  filed 27 

to  be  in  writing,  and  s  gned  by 

counsel 27 

when  deemed  sufficient  27 

to  answer  for  insufficiency 61,  66 

when  to  be  filed 61 

to  answer,  court  may  enlarge 

time  for 63 

unless  made,  answer  suffi- 
cient       61 

when  to  be  set  down  for 

hearing...       63 

when  to  be  deemed  aban- 
doned       63 

if     allowed,     proceedings 

thereon 64 

if    overruled,    proceedings 

thereon 65 

to  master's  report C.  C.83,  84 

Execution, 

final  process  by 8 

in  foreclosure  suits 92 

Fees, 
of  masters  and  examiners,  82; 

C.  C.      12 
clerk  may  charge  advance  fees, 

C.C.        2 
clerk  may  have  execution  for, 

C.  C.       2 


Fees— Continued.  Rule 

marshal  may   have  execution 
for C.C.        2 

Final  Record C.  C.      15 

Foreclosure  Suits, 

decree  in .      92 

bill  in,  what  to  state C.  C.       5 

Form, 
of  bill  in  equity 20 

Guardian  Ad  Liteu, 
appointment  of 87 

Hearing, 

notice  of C.  C.      18 

of  cases,  rule  for <J.  C.      20 

Heir, 
when  to  be  made  party  in  suits 
to  execute  trusts  of  will  etc..      50 

Impertinence, 
exception  to  bill  for 26, 27 

Infant, 
prayer  for  process  to  specify  if 

defendant  is 23 

appointment    of   guardian    ad 
litem 87 

Injunction, 

to  be  specially  prayed  for 21,  23 

to  stay  proceedings  at  law 55 

special,  grantabie  only  on  mo- 
tion        55 

how  long  to  continue  in  force..      55 
pending   appeal    may  be   sus- 
pended or  modified 98 

upon  creditors' bill C.C.      11 

effect  of C.  C.      10 

Interlocutory  Orders, 
by  judge  at  chambers 3 

Interrogatories. 
not  necessary  unless  complain- 
ant seeks  recovery 40 

in  bill,  division  and  numbering 

of 41 

firm  of  last 71 

those  to    be   answered,  to  be 

noted  in  bill 41,  42 

introduction  to 43 

what  need  not  be  answered 44 

depositions  on  written 67 

Issue  of  Law, 
how  may  be  called  up C.  C.      18 

Issue, 

when  suit  to  be  deemed  at 66 

note  of C.  C.      18 

Judge, 

powers  of  at  chambers 3 

single 3 

Jurats, 
how  verified C.C.       3 

Jurisdiction, 
clause  of  bill  may  be  omitted. .      21 
prayer  when  parties  out  of 22 

Law, 
injunction  to  stay  proceedings 
at 56 

Mail, 
service  of  paper  by C.C.      13 


254 


INDEX    TO    EQUITY    KULES. 


Marshal,  Rule 

process  to  be  served  by 15 

may  have  execution  lor  fees, 

C.  C.        2 
Masters  in  Chancery, 
appointment    an^    compensa- 
tion  82;  C.  C.      12 

reference  to,  upon  exceptions 

for  scandal,  etc 26,  27 

to  ascertain  necessity  of  separ- 
ate answers 62 

for  accounting  of  estates 73 

when  reference  to  be  laid  before      74 
duty  of  on  order  of  reference . .      75 
proceedings  before,  upon  refer- 
ence  73,77 

report  of 76 

how  witnesses  compelled  to  at- 
tend before 78 

accountants,  how  examined. . .      79 
answers  may  be  sworn  to  be- 
fore        59 

evidence  used  in  court  may  be 

used  before 80 

evidence   before    to   be   taken 

down 81 

appointment  of  standing  mas- 
ters       82 

exceptions  to  report  of 83 

costs  on  exceptions  overruled,      84 
Memorandum, 

at  foot  of  subpoena 12 

Mesne  Process  (see  Process). 
Minors 
prayer  for  process  to  state  if 

defendants  are 23 

guardians  ad  litem  for 87 

Mistakes, 

Cierical  in  decrees  corrected ...      85 
Mortgage, 

bdl  for  foreclosure  of C.  C.        5 

decree  in  suits  for  f oreclo.^ure 

of 92 

Motion  Book  (see  Order  Book). 

Motions 1-4 

before  judge  at  chambers,  no- 
tice of 3 

to  be  entered  in  order  book 4,  6 

what,  grantable  of  course 5 

proceedings  when  not  grantable 

of  course  6 

to  be  heard  ex  parte  when  no 

appearance 6 

for  further  time  to  answer 19 

for  leave  to  amend  bill 29 

answer 60 

for  injunction 55 

notice  of,  in  vacation C.  C.       3 

Ne  Exeat  Regno, 

to  be  specially  prayed  for 21, 93 

Nominal  Parties, 

to  bill 54 

jjon-Rksidents, 

solicitors,  how  served C.  C.      13 

to  give  security  for  costs,  C.  C.        2 


Non-Residents— Continued.          Rule 
clerk  or  notary  must  affix  offi- 
cial seal C.  C.  3 

Note, 
in  bill  specifying  interrogato- 
ries to  be  answered 41 

to  be  considered  part  of  bill 42 

Notices, 

of  motions C.  C.  17 

in  vacation 3 

of  hearing C.  C.  18 

to  solicitors,  when  to  be  deemed 

notice  to  parties 4 

of    motions    before    judge    at 

chambers 3 

when  entry  in  order  book  suffi- 
cient   4 

when  time  may  be  abridged ...  4 

of  motion  to  amend  bill 29 

amend  answer 60 

of  application  for  injunction ...  55 
of  taking  testimony  before  ex- 
aminers   67 

to  rile  cross  interrogatories  ...  67 
of     taking    testimony    before 

commissioners 68 

of  publication  of  testimony 69 

of  taking  testimony  de  bene  ess©  70 

of  proceedings  before  master. .  75 
Oath, 

who  may  administer C.  C.  3 

to  answers,  who  may  take 59 

waiver  of  answer  under. .  .C.  C.  14 

affirmation  equivalent  to 91 

Objection, 
to  bill  as  defective  for  want  of 

parties 52,  3 

setting  down  of,  for  argument,  52 
Order  Book, 

motions,  etc  ,  to  be  entered  in,  4 

to  be  kept  open  for  inspection,  4 

entry  in,  when  notice 4 

appearance  to  be  entered  in. . .  17 
order  pro  conf  esso  to  be  entered 

in..:. 18 

Orders, 
interlocutory,    by   judge    at 

chambers 3 

circuit  court  always  open  for. .  1 

office  of  clerk  always  open  for,  2 

entry  and  notice  of 4 

of  course  on  default 18 

for  amendment  abandoned 30 

to  take  tesiimony  in  vacation . .  67 
Paragraphs, 
bill  and  answer  to  be  divided 

into C.C.  4 

Parties 47,  53 

how  affected  by  process 10 

to  be  stated  in  introductory  part 

of  bill,  state  reasons 20 

form  of  prayer  when  out  of  ju- 
risdiction   ' 22 

defendants    to    be    named   in 

prayer  for  process 23 


INDEX    TO    KQUITY    RULES. 


255 


Parties— Continued.  Rule 

proper  persons  not  made,  when 

caue  to  proceed  without 47 

decree  in  above  case 47 

when  very  numerous,  proceed- 
ings    . .      48 

cestuis  que  trust,  when  to  be 

made 49 

when  heir  to  be,  in  suit  to  exe- 
cute trusts  of  a  will 50 

defendant,  upon  joint  and  sev- 
eral demand 51 

objection  to  bill  as  defective  for 

want  of 52,  53 

nominal 54 

bill  of  revivor  on  death  of 56 

change  of  interest  of 57 

examination  before  master  as 

to  account 79 

Petition, 

for  rehearing 88 

Plea, 

time  for  filing 18,  32 

to  have  certificate  of  counsel 

and  affidavit 31 

may  be  to  part  or  whole  bill ...      32 
to  fact  alleging  fraud,  to  be  ac- 
companied by  answer  deny- 
ing fraud 32 

plaintiff  may  set  down  for  ar- 
gument or  take  issue 33 

if  overruled,  defendant  to  an- 
swer bill 34 

costs  on  overruling  of 34 

amendment  of  bill  on  order  sus- 
taining       35 

costs  on  order  sustaining 35 

good,  though  not  covering  all 

of  bill  subject  to 36 

good,    though   answer    covers 

same  ground 37 

when  truth  of,  deemed  admit- 
ted       38 

when  defendant  may   protect 

himself  by 39 

to  supplemental  bill 57 

Pleadings, 
court  always  open  for  filing  of,    1,  5 
copies  to  be  served  on  opposite 

parties > C.  C.       1 

Practice, 
when   English  chancery  rules 

to  govern 90 

regulation  of 89 

Prayer  in  Bill 21 

for  process 23 

Proceedings, 

regulation  of,  by  circuit  court,      89 
Printing, 
what   for   hearing   and    argu- 
ment  C.  C.      20 

what  for  record C.  C.      19 

copies  to  be  furnished C.  C.      19 

costs  for C.  C.      19 

order  for C.  C.      19 


Process,  Rule 

mesne,  grantable  of  course 5 

what  constitutes 7 

final  what 8 

writ  of  assistance  when 9 

parties  how  affected  by 10 

not  to  issue  before  bill  filed,  11 

when  returnable 12 

separate  writs,  when 12 

service,  how  made 13 

alias  subpoena,  when 14 

by  whom  to  be  served 15 

to  make  parties  to  bill 22 

prayer  for,  what  to  state. . .  23 

final,  forms  of  78 

courts  always  open  for  issuing 

of 1 

in  favor  of  or  against  third  per- 
sons    10 

rules  and  regulations  for 89 

Prochein  Amis, 

suits  by 87 

Pro  Confesso, 

and  proceedings  thereon 18, 19 

C.  C.  10 
on  failure  to  put  in  answer  to 

amended  bill 46 

Publication, 
of  testimony,  when  and  how 

made 69 

Receivers, 
on  creditor's  bills,  rights  and 

duties  of CO.  8,  9 

may  be  appointed  at  any  stage 

of  suit CO.  11 

Record, 

final C.  C.  15 

Reference, 

of  account  of  personal  estate . .  73 

when  to  be  laid  before  master,  74 

duty  of  master  as  to 75 

report,  what  it  need  not  contain  76 

proceedings  before  master 77 

witnesses,  how  summoned 78 

account,  production  of 79 

examiination  of  party 79 

affidavits,  etc.,  what  used 80 

examination    of   creditor    and 

claimant 81 

appointment  and  compensation 

of  master 82 

exceptions  to  report  of  master,  83 

costs  on  exceptions  overruled,  84 
Rhference  to  Master, 
upon  exceptions   for   scandal, 

etc 26,27 

to   ascertain   if    separate   an- 
swers necessary 62 

Rehearing, 

petition  for,  form  of 88 

when  will  be  granted 88 

Replication, 

special  not  necessary 45 

amendment  of  answer  before 

and  after 60 


256 


INDEX    TO    EQUITY    RULES. 


Replication— Continued.  Rule 

when  to  be  filed 66 

proceedings  on  failure  of 66 

Report, 

of  master 76 

exceptions  to 83,  84 

not  to  be  recited  in  decree 86 

master  may  not  retain  for  his 
fees 82 

Rbturn  Day, 
of  subpcena 12 

Revivor, 
bill  of 56,58 

Rule  Days, 

what  to  be 2 

powers  of  judges  on 3 

Rules, 
power  of  Circuit  Courts  to  make 

further 89 

when  not   applicable,   English 

Chancery  Rules  to  govern 90 

when  to  take  effect 92 

Scandal, 
exceptions  to  bill  for 26,  27 

Seal, 
non-resident   clerk   or   notary 
must  affix C.  C.        3 

Security  for  Costs, 

when  required C.  C.       2 

form  of C.  C.        2 

Sequestration, 
writ  to  enforce  decree 7,  8 

Service, 

of  subpcena,  how  made  13 

of  copies  of  pleadings  required, 

C.  C.        1 

of  papers  by  mail  C.  C.      13 

of  process,  by  whom  to  be  made      15 
to  be  docketed  when  made 16 

Signature  of  Counsel, 
to  bill. .     24 

Solicitor, 
when  bill  may  be  verified  by, 

C  C.21,  95 
notice  to.  notice  to  parties 4 

Specific  Performance, 

decree  for,  what  to  state 8 

how  executed 8 

Subpcena, 
to  be  mesne  process  in  all  suits,        7 
issuable  as  of  course  upon  bill 
filed 12 


Subpcena— Continued.  Rule 

not  lo  issue  until  bill  filed 11 

return  day  of 12 

memorandum  on .   12 

when  more  than  one  defendant,      12 

how  served 18 

alias  served 14 

who  may  serve 15 

upon  bill  of  revivor 56 

ad.  tes.  before  master,  commis- 
sioner or  examiner 78 

Supplemental  Bill, 

when  proper 57 

when  not  necessary  in 58 

Stockholders  in  Corporation, 
bill,  what  to  contain 94 

Testimony, 

commission  to  take 67 

taking  of,  by  oral  interrogato- 
ries, before  examiner 67 

taking  of  by  deposition 68 

time  allowed  for  taking  67-69 

publication  of 69 

de  bene  esse,  taking  of 70 

form  of  last  interrogatory 71 

Third  Persons, 

process  for  or  against 10 

not  parties,  decree  not  preju- 
dice  47-48 

Trusts, 
of  will,  suit  to  execute 50 

Trustees, 
when  to  sue  alone,  and  when 
cestuis  que  use  to  be  joined. .      49 

Vacation, 
powers  of  judges  in 3 

Verification, 
of  answers,  before  whom  to  be 

made 59 

of  bills,  by  agent  or  solicitor, 

C.  C      21 

Will, 
suit  to  execute  trusts  of 50 

Witnesses, 
how  attendance  compelled  be- 
fore examiners 67 

before  masters,  commissioners 
or  examiners 78 

Writ, 

of  assistance 9 

of  sequestration 8 


STATE   OF   MICHIGAN. 


RULES  OF  THE  CIRCUIT  COURTS. 

IN  CHANCERY. 


AGENTS,    THEIR   APPOINTMENT   AND   LIST. 

Rule  1.  Every  solicitor  shall  have  an  agent  at  the  county- 
seat  in  each  county  of  this  state  where  a  circuit  court  is  estab- 
lished, except  in  the  county  where  such  solicitor  keeps  his  office. 
The  register,  deputy  register  and  practicing  solicitors,  or  any 
other  person  specially  authorized  by  the  court,  may  be  such 
agents;  but  the  agent  must  have  an  office  or  a  regular  and  known 
place  of  business  within  two  miles  of  the  register's  office,  in  the 
city  or  town  for  which  he  is  appointed  agent.  The  appointment 
of  an  agent  shall  be  in  writing,  signed  by  the  solicitor,  and 
specifying  his  place  of  residence.  It  shall  be  filed  with  the  reg- 
ister at  the  place  for  which  the  appointment  is  made,  who  shall 
keep  in  his  office  a  list  of  such  agents,  with  the  names  and  resi- 
dence of  the  solicitors  appointing  them. 

SERVICE   ON   AGENT,    OR  BY  MAIL — NOTICE   OP  FILING    PAPERS — 

NOTICE   NOT  NECESSARY   WHEN   DEFENDANT 

HAS    NOT     APPEARED. 

Rule  2.  When  the  solicitors  for  adverse  parties  do  not  reside 
in  the  same  city,  village  or  township,  service  of  papers  contem- 
plated by  these  rules  may  be  made  on  an  agent ;  but  if  there  be 
no  such  agent,  such  service  must  be  made  by  mail,  post- 
paid. Notice  of  the  filing  of  all  pleadings  shall  be  given  to  the 
adverse  party,  except  when  otherwise  provided  by  these  rules, 
within  the  time  limited  for  filing  the  same.  But  no  service  of 
notice  in  the  ordinary  proceedings  in  a  cause  shall  be  necessary 
to  be  made  on  a  defendant  who  has  not  appeared  therein. — As 
amended  October  30,  187 If. 

5  Mich.  215;  33  Mich.  298;  11  Mich.  344:  12  Mich.  427; 
22  Mich.  212;  26  Mich.  390;  38  Mich.  132.  See  H.  8.  ^§6636- 
6638. 

17  [257| 


258  MICHIGAN    CHANCERY    RULES. 


DOUBLE   TIME   WHEN   SELIVICE   ON    AGENT — HOW   PAPERS  SERVED 
ON   SOLICITORS  AND   AGENTS. 

Rule  3.  When  the  service  is  on  an  agent,  or  by  putting  in 
the  postoffice  for  want  of  an  agent,  it  must  be  double  the  time  of 
service  which  would  be  requisite  if  the  service  was  on  the  solic- 
itor in  person.  And  if  the  solicitor  resides  more  than  one  hun- 
dred miles  from  the  agent  or  office  where  the  service  is  made, 
the  time  of  such  service  shall  in  no  case  be  less  than  fifteen  days. 
Notices  and  other  papers  may,  in  absence  of  a  solicitor  or  agent 
from  his  office,  be  served  by  leaving  the  same  with  his  clerk  or 
law  partner  in  such  office,  or  with  a  person  having  charge 
thereof;  and  if  no  person  is  found  in  the  office,  by  leaving  the 
same,  between  the  hours  of  six  in  the  morning  and  nine  in  the 
evening,  in  a  suitable  and  conspicuous  place  in  such  office;  or  if 
the  office  be  not  open  so  as  to  admit  of  service  therein,  then  by 
leaving  the  same  at  the  residence  of  the  solicitor  or  agent,  with 
some  person  of  suitable  age  and  discretion. 
5  Mich.  215. 

ADDRESS   OF   BILLS   AND   PETITIONS — CAPTION   OF     DECREES    AND 
ORDERS. 

Rule  4.     All  bills  and  petitions  hereafter  to  be  filed  in  any 
of  the  circuit  courts,  shall  be  addressed:     "  To  the  Circuit  Court 

for  the  County   of  ,   in   Chancery;"   and   the  caption  of 

decrees  shall  be  as  follows,  viz. :     "  State  of  Michigan,  The  Cir- 
cuit Court  for  the  County  of  ,  in  chancery.     At  a  session 

of  said  Court,  held  at ,  on  the day  of ,  in  the 

year  one  thousand  eight  hundred  and . 

"Present — Hon. , 

Circuit  Judge. 

The  caption  of  orders  made   by  circuit  court  commissioners 
shall  be  as  follows: 

"State   of  Michigan,    Judicial   Circuit,  in   Chancery. 

Suit  pending  in  the  Circuit  Court  for  the  County  of ,  in 

Chancery;  at    ,  on  the day  of ,  A.  D.  18 — . 

"  It  is  ordered,"  etc. 

51  Mich.  623;  National  Bank  v.  Byles,  67  Mich.— (Oct.  20, 
87),  45  Mich.  394. 

MOTIONS  TO  BE   MADE  ON   DAY   FOR  WHICH    NOTICED— CONTINU- 
ANCE   OF    MOTIONS. 

Rule  5.     In  all  cases,   motions  shall  be  made  and  petitions 


MICHIGAN    CHANCERY    RULES.  259 

presented  on  the  day  for  which  they  are  noticed,  if  the  party  has 
an  opportunity  to  be  heard  on  that  day,  unless  the  court  (or  cir- 
cuit court  commissioner,  in  a  matter  pending  before  him)  shall 
otherwise  direct.  And  if  there  is  not  sufficient  time  to  finish  the 
business  noticed  for  any  day,  it  may  be  continued  from  day  to 
day  until  it  is  completed;  or  it  may  be  adjourned  to  some  subse- 
quent day.  And  motions  made  for  a  day  in  term,  and  which  can 
not  be  heard  on  the  da}'  for  which  they  are  noticed,  shall  stand 
continued  from  day  to  day  without  any  special  continuance. 

Walk.Ch.  309;  Har.  Ch.  19;  Har.  Ch.  258;  19  Mich.  157; 
47  Mich.  177.     See  H.  S.  §§6603-6610-6627. 

BECUKIT.Y     FOR    COSTS    BY    NONRESIDENT  —  RESIDENTS     MAY     BE 
REQUIRED   TO    GIVE. 

Rule  6.  In  all  cases  where  the  complainant  or  complainauts 
are  not  residents  of  this  state,  before  process  shall  issue,  a  bond 
in  the  penal  sum  of  one  hundred  dollars  shall  be  filed  with  the 
register,  to  be  approved  of  by  him,  conditioned  to  pay  all  such 
costs  as  shall  be  decreed  against  the  complainant  in  such  case; 
and  the  court  or  a  circuit  court  commissioner  may,  upon  motion  , 
upon  sufficient  cause  shown,  require  a  new  bond  to  be  filed,  in 
the  same  or  an  additional  amount;  and  may  also  require  security 
where  complainants  are  residents  of  this  state,  if  the  justice  of 
the  case  demand  it. 

BY   WHOM   BILLS  MAY   BE   VERIFIED. 

Rule  7.     Sworn  bills  may  be  verified  by  the  oath  of  the  com- 
plainant, or  in  case  of  his  absence  from  the  state,  or  other  suffi- 
cient cause  shown,  by  the  oath  of  his  agent,  attorney  or  solicitor. 
Walk.  Ch.  5. 

MANNER   OF   VERIFYING   BILLS,    ETC. 

ItuLii  8.  In  bills,  answers  and  petitions  which  are  to  be  veri- 
fied by  the  oath  of  the  party,  the  several  matters  stated,  charged, 
averred,  admitted,  or  denied,  shall  be  stated  positively,  or  upon 
information  and  belief  only,  according  to  the  fact.  The  oath 
administered  to  the  party  shall  be,  in  substance,  that  he  has  read 
the  bill,  answer  or  petition,  or  has  heard  it  read,  aud  knows  the 
contents  thereof,  and  that  the  same  is  true  of  his  own  knowledge, 
except  as  to  the  matters  which  are  therein  staled  to  be  on  his 


260  MICHIGAN    CHANCERY    BULKS. 

information  or  belief,  and  as  to  those  matters  he  believes  it  to  be 
true;  and  the  substance  of  the  oath  shall  be  stated  in  the  jurat. 

See  H.  S.  §  6621;  Walk.  Cn.  809;  Walk.  Ch.  439;  Har.  Ch. 
243;  23  Mich.  332;  31  Mich.  290;  20  Mich.  34;  26  Mich.  437; 
20  Mich.  34;  Hr.  Ch.  301;  12  Mich.  297;  55  Mich,  190;  61 
Mich.  9;  53  Mich.  228;  45  Mich.  543;  46  Mich.  489;  56  Mich.  3. 

RETURN  DAY  OF  PROCESS— FURTHER  PROCESS. 

Rule  9.  All  process,  unless  otherwise  directed,  shall  be  made 
returnable  on  a  day  certain  (except  Sunday)  either  in  vacation  or 
in  term,  not  less  than  ten  days  from  the  issuing  thereof;  and  if 
process  is  not  executed  before  the  return  day,  new  process  may 
be  taken  out,  of  course,  as  often  as  may  be  necessary,  or  an  alias 
or  pluries  may  be  issued. 

See  H.  S.  §§  6629,  6632,  6636;  3  Mich.  280;  16  Mich.  9;  27 
Mich.  454;  32  Mich.  89;  32  Mich.  307. 

SUBPCENA — HOW   SERVED. 

Rule  10.  The  names  of  all  the  defendants  in  a  cause  shall  be 
inserted  in  the  subpoena.  It  may  be  served  by  delivering  a  copy 
of  the  writ,  subscribed  by  the  complainant,  his  solicitor,  or  the 
officer  or  person  serving  the  same,  and  inscribed  "copy,"  and 
showing  the  original,  under  seal  of  the  court,  at  the  time  of  such 
delivery  to  the  defendant.  The  service  may  be  on  or  before  the 
return  day  mentioned  in  the  subpoena. 

See  H.    S.  §§6634,  6636.   6638,  6659;  Har.  Ch.  19,    254; 

Walk.  Ch.  309,  339;  14  Mich.  514;  35  Mich.  115;  39  Mich. 

563;  Shendon  v.  Cameron,  Mich.  (April  28,  1887);  56  Mich. 

185;  45  Mich.  418;  47  Mich.  604;  61  Mich.  35. 

PROCEEDINGS  ON  RETURN  OF  SUBPCENA  SERVED— APPEARANCE 
AND  ANSWER  BY  DEFENDANT. 

Rule  11.  Upon  the  return  of  the  subpoena  served,  as  directed 
in  the  preceding  rule,  the  defendant  shall  cause  his  appearance 
to  be  entered  in  twenty  days  from  the  return  day  of  said  writ, 
and  if  he  does  not  require  a  copy  of  the  bill  as  hereinafter  pro- 
vided, he  shall  plead,  answer  or  demur  within  the  same  time,  or 
in  default  thereof  his  appearance  may  be  entered  by  the  register, 
and  the  bill  of  complaint  taken  as  confessed.  If  a  copy  of  the 
bill  is  required,  he  shall  answer  in  twenty  days  from  the  service 
of  such  copy,  or  the  bill  may  be  taken  as  confessed.  Copies  of 
every  pleading  by  a  defendant  shall  be  served  within  the  time 
limited  for  filing  the  same. 


MICHIGAN    CHANCERY    RULES.  261 

See  H.  S.  §§6629,  6636,  6638,  6689;  Har.  Ch.  241,  426; 
Walk.  Ch.  19,  45;  9  Mich.  234;  27  Mich.  52;  12  Mich.  314; 
14  Mich.  514;  29  Mich.  72;  27  Mich.  52;  33  Mich.  268;  25 
Micb.  149;  29  Mich.  289;  33  Mich.  305;  38  Mich  596;  39  Mich. 
628;  43  Mich.  208;  43  Mich.  548;  57  Mich.  208;  45  Mich  394; 
44  Mich.  202;  56  Midi,  295;  58  Mich.  482;  62  Mich.  480;  63 
Mich.  382;  50  Mich.  16;  01  Mich.  4;  52  Mich.  4*9;  55  Mich. 
280;  51  Mich.  440;  45  Mich.  453;  45  Mich.  394;  59  Mich.  296; 
58  Mich.  494;  Lafferty  v.  Bank,  70  Mich.  (May  11,  1888); 
Hatch  v.  St.  Joseph,  68  Mich.  (Jan.  19,  1888). 

ATTACHMENT  AGAINST   DEPENDANT   NOT   ANSWERING. 

Rule  12.  When  the  subpoena  has  been  personally  served,  and 
the  defendant  shall  fail  to  appear  and  plead,  answer  or  demur, 
within  the  time  limited  for  the  same,  the  complainant  may,  upon 
filing  an  affidavit  that  a  discovery  as  to  the  matters  charged  in 
the  bill  is  necessary,  and  service  thereof  with  notice,  move  the 
court  for  an  attachment  against  such  defendant  or  defendants. 
26  Mich.  102. 

PROCEEDINGS  ON  SUCH   ATTACHMENT. 

Rule  13.  If  the  defendant  appears  personally,  or  is  brought 
into  court  by  the  sheriff,  on  the  return  of  an  attachment  for  not 
answering,  he  shall  enter  his  appearance  and  put  in  his  answer, 
and  pay  the  costs  incurred  by  his  contempt  instanter,  or  within 
such  time  as. the  court  shall  appoint,  or  be  committed  until  he 
complies. 

See  H.  S.  §  6623. 

ORDER   THAT   COMPLAINANT    GIVE    COPY     OP    BILL — BILL  TO   BE 
DISMISSED   IP  COPY  NOT   SERVED. 

Rule  14.  When  the  defendant  has  appeared,  he  may  have 
an  order,  of  course,  that  the  complainant  deliver  a  copy  of  the* 
bill  to  the  defendant  or  his  solicitor  in  fifteen  days,  and  if  such 
a  copy  is  not  delivered  within  fifteen  days  after  the  service  of 
notice  of  such  order,  or  within  such  further  time  as  may  be  al- 
lowed for  that  purpose,  the  defendant,  on  filing  an  affidavit  of 
the  service  of  such  notice  and  that  no  copy  of  the  bill  has  been 
served,  may  have  a  decree  dismissing  the  suit,  with  costs,  for 
want  of  prosecution. 

Har.  Ch.  256;  58  Mich.  393. 

COMPLAINANT     MAY    PROCEED     EX    PARTE    ON     BILL     TAKEN     AS 
CONFESSED,    UNLESS   DEFENDANT   HAS   APPEARED. 

Rule  15.     When  a  bill  has  been  taken  pro  confesso  against  a 


262  MICHIGAN    CHANCERY    BULKS. 

defendant,  unless  lie  may  have  entered  his  sppcarance,  it  shall 
not  be  necessary  in  any  further  proceeding  in  a  cause  for  the 
complainant  to  serve  such  defendant  with  any  of  the  notices  con- 
templated by  any  of  the  rules  of  practice  of  this  court  for  any 
object  or  purpose  whatever,  but  he  may  proceed  ex  parte. 

See  H.  S.  <§  6636,  6638;  Walk.  Ch.  45;  16  Mich.  223; 
Walk.  Cb.  200;  6  Mich.  217;  13  Mich.  258;  38  Mich.  395;  5 
Mich.  215;  11  Mich.  344;  12  Mich.  427;  15  Mich.  253;  38 
Mich.  662. 

PROCEEDINGS  AGAINST  ABSENT  OR  CONCEALED  DEFENDANTS. 

Rule  16.  The  order  to  take  the  bill  as  confessed  against  an 
absent  or  concealed  defendant,  and  for  a  reference  under  the  pro- 
visions of  chapter  one  hundred  and  fifteen  of  Ihe  Compiled  Laws 
(Ch.  116,  Comp.  L.  1871),  may  be  entered  of  course,  on  filing 
the  proof  of  publication  or  notice,  and  an  affidavit  that  the  de- 
fendant has  not  appeared.  But  the  order  requiring  the  defend- 
ant to  appear,  and  designating  the  paper  in  which  itshallbepub- 
lished,  or  a  direction  to  the  commissioner  to  receive  the  testi- 
mony of  the  complainant  as  evidence  on  the  reference,  can  only 
be  obtained  by  a  special  application. 

See  H.  S.  §§  6670,  6686,  7500;  1  Mich.  480;  Walk.  Ch.305; 
10  Mich.  117;  14  Mich.  514;  13  Mich.  533;  30  Mich.  63,  105; 
10  Mich.  260;  14  Mich.  532;  32  Mich.  307;  29  Mich.  72;  32 
Mich.  307;  40  Mich.  264;  53  Mich.  629;  60  Mich.  318;  45 
Mich.  358;  64  Mich.  53;  59  Mich.  296:  50  Mich.  40;  45 
Mich.  44;  54  Mich.  236;  45  Mich.  218;  25  Mich.  149;  36 
Mich.  402;  2  Mich.  161. 

EXCEPTIONS     TO     ANSWER     NOT     TO     PREVENT     DISSOLUTION    OP 
INJUNCTION,    ETC. 

Rule  17.  Exceptions  to  an  answer  shall  not  prevent  the  dissolu- 
tion of  an  injunction  or  the  'discharge  of  a  ne  exeat;  but  upon 
every  application  for  such  dissolution  or  discharge,  made  upon 
answer  before  exceptions  are  filed,  or  before  the  validity  of  ex- 
ceptions filed  has  been  determined,  the  sufficiency  of  theanswer 
in  all  points  material  to  the  allowance  of  such  application  shall 
be  considered  in  the  decision  thereof. 

WAIVER  OP    OATH    TO    ANSWER — COMPLAINANT   NOT    TO    EXCEPT 

FOR  INSUFFICIENCY   IN    SUCH    CASE— FACTS    STATED 

IN  ANSWER  ADMITTED  IF    NOT   REPLIED  TO. 

Rule  18.  If  the  complainant  waives  the  necessity  of  the  answer 
being  made  on  oath  of  the  defendant,  it  must  be  distinctly  stated 


MICHIGAN    CHANCER?    RULE8.  263 

in  the  bill.  When  the  answer  is  put  in  without  oath,  it  may  be 
excepted  to  for  scandal  and  impertinence;  but  the  complainant 
shall  not  be  at  liberty  to  except  thereto  for  insufficiency;  but  all 
material  alienations  in  the  bill,  which  are  not  answered  and  ad- 
mitted, may  be  proved  by  him  in  the  same  manner  as  if  they 
were  distinctly  put  in  issue  by  the  answer;  and  if  no  replication 
is  filed,  the  matters  of  defence  set  up  in  the  defendant's  answer 
will,  on  the  hearing,  be  considered  as  admitted  by  the  complain- 
ant, although  the  answer  is  not  on  oath. 

See  H.  S.  §§  6618,  6021;  Walk.  Ch.  439;  39  Mich.  85; 
Walk.  Ch.  267:  15  Mich,  316;  12  Mich.  297;  40  Mich.  52;  9 
Mich.  536;  15  Mlcb.  316;  40  Mich  52;  Walk.  Ch.  90;  2 
Mich.  144,  213;  42  Mich.  181;  5  Mich.  171;  13  Mich.  552;  6 
Mich.  223,  42  Mich.  177;  11  Mich.  9;  12  Mich.  314;  36  Mich. 
113;  27  Mich.  349;  42  Mich.  304:  49  Mich.  399;  56  Mich. 
301:  50  Mich.  200;  48 Mich.  375;  58  Mich.  494. 

ANSWERS,  ETC.,  BEFORE   WHOM   MAY   BE   SWORN   TO. 

Rule  19.  The  plea  or  answer  of  the  defendant  may  be  sworn 
to  before  any  officer  authorized  by  the  laws  of  this  state  to  ad- 
minister oaths  or  take  affidavits.  It  may  also  be  sworn  to  before 
any  judge  of  any  court  of  record  in  the  United  States;  but  if 
sworn  to  before  such  judge  in  any  other  state  or  territory  in  the 
United  States,  his  certificate  shall  be  accompanied  by  the  certifi- 
cate of  the  clerk  or  deputy  clerk  of  such  court,  under  the  seal 
thereof,  showing  the  official  character  of  such  judge,  and  the  gen- 
uineness of  his  signature.  Such  plea  or  answer  may  be  sworn 
to  in  any  foreign  country  before  any  minister  or  other  diplomatic 
agent  or  consul  of  the  United  States,  or  any  notary  public;  but 
the  certificate  of  such  notary  shall  be  made  under  his  notarial 
seal. 

See  H.  S.  §7448. 

DEFENDANT  must  answer   original  bill   before    entitled 

TO   ANSWER   TO   CROSSBILL. 

Rule  20.     When  a  crossbill  is  filed,  the  complainants  therein 
who  are  defendants  in  the  original  bill  shall  put  in  and  perfect 
their  answer  to  the  original  bill  before  they  shall  be  entitled  to  an 
order  to  compel  an  answer  to  the  cross  bill,  unless  the  court 
otherwise  specially  direct. 

Walk.  Ch.  170;  2  Mich.  472;  10  Mich.  40,  291;  12  Mich. 
94;  30  Mich.  388;  43  Mich.  208;  14  .Mich.  361. 


264  MICHIGAN    CHANCERY    RULES. 

AMENDMENTS  TO  BILL,  WHEN  OP  COURSE— NOT  OP  COURSE  ON 
INJUNCTION  BILL— REGISTER  NOT  TO  PERMIT  AMENDMENTS 
UNLESS  AUTHORIZED— nOW  AMENDMENTS  MADE  AND  SERVED. 

Rule  21.  If  the  bill  has  not  been  sworn  to,  the  complainant 
may  amend  it,  at  any  time  before  the  plea,  answer  or  demurrer 
is  put  in,  of  course  and  without  costs.  He  may  also  amend  of 
course  after  answer,  at  any  time  before  he  replies  thereto,  until 
the  time  for  replying  expires,  and  without  costs  if  a  new  or  fur- 
ther answer  is  not  thereby  rendered  necessary;  but  if  such 
amendment  requires  a  new  or  a  further  answer,  then  it  shall  be 
on  payment  of  costs  to  be  taxed.  He  may  also  amend  sworn 
bills,  except  injunction  bills,  in  the  same  manner,  if  the  amend, 
ments  are  merely  in  addition  to  aud  not  inconsistent  with  what  is 
contained  in  the  original  bill;  such  amendments  being  verified  by 
oath,  as  the  bill  is  required  to  be  verified.  But  no  amendment 
of  an  injunction  bill  shall  be  allowed  without  a  special  order  of 
the  court,  and  upon  due  notice  to  the  adverse  party,  if  he  has 
appeared  in  the  suit.  Amendments  of  course  may  be  made 
without  entering  any  rule  or  order  for  that  purpose;  but  the  reg- 
ister shall  not  permit  any  amendments  to  be  made  unless  the  same 
appear  to  be  duly  authorized.  And  in  every  case  of  an  amend- 
ment of  course,  the  complainant's  solicitor  shall  either  file  a  new 
engrossment  of  the  bill  with  the  register  where  the  original  bill 
is  filed,  or  furnish  him  with  an  engrossed  copy  of  the  amend- 
ments, containing  the  proper  references  to  the  folios  and  line  in 
the  original  bill  on  file,  where  such  amendments  are  to  be  inserted 
or  made.  But  no  amendment  shall  be  considered  as  made  until 
the  same  is  served  upon  the  adverse  party,  if  he  has  appeared  in 
the  cause. 

Har.  Ch.  438;  Walk.  Ch.    398;  Walk.  Ch.  486;  20  Mich. 

34;  10  Mich.  486;  18  Mich.  298;  19  Mich.  516;  36  Mich.  77; 

1  Doue:.  504;  9  Mich.    246;  12  Mich.    414;  13  Mich.  367;  36 

Mich.  77;  43  Mich.  129;  Walk.    Ch.  485;  14  Mich.  160;  15 

Mich.  104;  18  Mich.  298;  20  Mich.  34;  20  Mich.  437;  29  Mich. 

366;  41  Mich.  608;  43  Mich.  433;  45  Mich.  29;  45  Mich.  504; 

48  Mich.  536;  48  Mich.  201;  52  Mich.  429;  63  Mich.  238;  62 

Mich.  598;  52  Mich.  637. 

AMENDMENTS  AFTER   DEMURRER. 

Rule  22.  If  the  defendant  demurs  to  the  bill  for  want  of 
parties,  or  for  any  other  defect  which  does  not  go  to  the  equity 
<>f  the  whole  bill,  the  complainant  may  amend  of  course,  on  pay- 


MICHIGAN    CHANCERY    RULES.  265 

ment  of  costs,  at  any  time  before  the  demurrer  is  noticed  for 
argument,  or  within  ten  days  after  receiving  a  copy  of  the 
demurrer;  and  in  all  cases  of  demurrer  for  causes  not  within 
the  former  part  of  this  rule,  the  complainant's  right  to  amend, 
and  the  terms  on  which  amendments  may  be  permitted,  shall  be 
in  the  discretion  of  the  court. 

Walk.  Cli.  398;  34  Mich.  10;  35  Mich.  155;  43  Mich.  220. 

AMENDMENTS   AFTER    INSUFFICIENT    ANSWER — AMENDMENTS    ON 
PLEA   OR  DEMURRER   OVERRULED. 

Rule  23.  Where  the  answer  is  excepted  to  as  insufficient 
and  the  defendant  submits  to  answer  further,  or  the  answer  on 
reference  if  found  insufficient,  the  complainant  may  amend  the 
bill  of  course,  and  without  costs,  at  any  time  within  ten  days 
after  the  defendant  submits  to  answer  any  of  the  exceptions,  or 
after  confirmation  of  the  commissioner's  report,  if  the  defendant 
does  not  submit  to  answer  any  of  the  exceptions;  and  the  de- 
fendant shall  answer  the  amendment  and  exceptions  together. 
If  a  plea  or  demurrer  to  the  bill  be  overruled,  the  complainant 
may,  within  ten  days  thereafter,  amend  his  bill  of  course,  and 
without  costs;  and  in  all  cases  where  the  complainant  is  permit- 
ted to  amend  his  bill,  if  the  answer  has  not  been  put  in,  or  a 
further  answer  is  necessary,  the  defendant  shall  have  the  same 
time  to  answer,  after  such  amendment,  as  he  originally  had. 
But  no  amendments,  of  course,  of  injunction  bills  are  to  be 
allowed  under  this  or  the  preceding  rule,  nor  any  amendments 
which  are  inconsistent  with  the  original  swrorn  bill. 
34  Mich.  51;  41  Mich.  719. 

COMMON   AND   SPECIAL  ORDERS— HOW   ORDERS  TO    BE   ENTERED. 

Rule  24  Orders  to  which  a  party,  by  the  rules  and  prac- 
tice of  the  court,  is  entitled  of  course  without  showing  special 
cause,  shall  be  denominated  common  orders;  and  orders  made 
on  special  application  to  the  court,  or  circuit  court  commis- 
sioner, shall  be  denominated  special  orders.  All  common  orders 
and  orders  by  consent  of  the  parties,  such  consent  being  in 
writing  and  signed  by  such  parties  or  their  solicitors  and  filed, 
may  be  entered  with  the  register  in  the  common  rule  book 
kept  in  his  office,  at  the  instance  of  the  party  or  his  solicitor, 
at  the  peril  of  the  party  taking  such  order;  and  the  day  on 
which  the  order  is  made  shall  be  noted  in  the  entry  thereof,  and 


266  MICHIGAN    CHANCERY    RULES. 

all  special  orders  made  by  the  special  direction  of  tie  court,  or 
circuit  court  commissioner,  shall  be  entered  in  the  record  of  the 
proceedings  of  the  court,  as  heretofore  has  been  usual . 
Har.  Ch.  438;  14  Mich.  340. 

EITHER  PARTY  MAY  NOTICE  PLEA  OR   DEMURRER  FOR  ARGUMENT 
— ISSUE   ON   PLEA   AFTER   ALLOWANCE. 

Rule  25.  When  the  defendant  pleads  or  demurs  to  a  bill,  the 
complainant  shall  have  twenty  days  to  file  a  replication  to  his 
plea,  or  amend  his  bill;  and  if  he  does  not  take  issue  on  the  plea 
or  amend  the  bill  within  that  time,  either  party  may  notice  the 
plea  or  demurrer  for  argument,  at  the  next  or  any  subsequent 
term.  If  the  plea  is  allowed,  the  complainant  may,  within  ten 
days  after  notice  of  such  allowance,  take  issue  on  the  plea,  upon 
payment  of  the  costs  of  hearing  thereon. 

Walk.  Ch.  485;  Har.  Ch.  265.  311,  219,  395;  Walk.  Ch. 
117,  317,  355,  457;  Ehr.  Ch.  240;  2  Doug.  191;  Walk.  Ch. 
416;  11  Mich.  56;  16  Mich.  162;  28  Mich.  359;  Walk.  Ch. 
454;  24  Mich.  241;  Har.  Ch.  227,  247;  15  Mich.  104,  511;  25 
Mich.  175;  Walk.  Ch.  28,  394,  54,  327;  1  Mich.  34;  21  Mich. 
263;  Har.  Ch.  227;  21  Mich.  524:  32  Mich.  42;  34  Mich.  342; 
43  Mich.  220;  43  Mich.  269;  43  Mich.  548;  60  Mich.  470. 

BILE   MAY   BE    TAKEN     AS     CONFESSED,    IF     FRIVOLOUS    PLEA     OR 

DEMURRER  IS  PUT   IN — ANSWER    AFTER   PLEA 

OR   DEMURRER   OVERRULED. 

Rule  26.  If  a  plea  or  demurrer  is  overruled  as  frivolous,  or  a 
plea  upon  issue  thereou  is  found  to  be  untrue,  the  complainant 
may,  unless  the  court  otherwise  direct,  have  an  order  to  take 
the  bill  as  confessed,  or  he  may  compel  the  defendant  to  answer 
the  bill  at  his  election.  In  all  other  cases,  if  the  plea  or  demur- 
rer be  overruled,  neither  a  further  plea  nor  demurrer  shall  be 
received;  and  the  defendant  shall  answer  the  bill  and  pay  the 
costs  of  the  heariug,  within  twenty  days  after  notice  of  the  order 
overruling  the  plea  or  demurrer,  or  such  other  time  as  may  be 
prescribed  by  the  court  in  such  order.  If  he  fails  to  put  in  his 
answer  and  pay  the  costs  within  the  time  prescribed,  the  bill 
may  be  taken  as  confessed,  and  the  matter  thereof  decreed 
accordingly;  or  the  complainant  may  have  an  attachment  to 
compel  an  answer. 


MICHIGAN    OHANCERY     RULES.  261 

WHEN  COMPLAINANT    MAY    EXCEPT   TO    ANSWER — WHEN    ANSWER 

DEEMED   SUFFICIENT — DEPENDANT   MAY   SUBMIT 

TO     ANSWER    EXCEPTIONS. 

Rule  27.  When  the  answer  is  to  the  whole  bill,  the  com- 
plainant shall  have  twenty  days,  after  notice  thai  such  answer 
is  put  in,  to  except  to  the  same,  or  if  the  answer  is  to  part  of  the 
bill  only,  he  shall  have  twenty  days  after  the  plea  or  demurrer  to 
the  residue  of  the  bill  has  been  allowed  or  overruled,  to  except 
to  such  answer;  at  the  expiration  of  which  time,  if  no  exceptions 
are  taken,  and  no  order  for  further  time  has  been  granted,  the 
answer  shall  be  deemed  sufficient.  If  the  complainant  excepts 
to  the  answer  for  insufficiency,  the  defendant  may,  within  eight 
days  after  service  of  a  copy  of  the  exceptions,  give  written  notice 
of  his  submission  to  answer  any  or  all  of  such  exceptions  ;  and 
he  shall  be  liable  for  the  costs  of  the  exceptions  which  he  sub- 
mits to  answer. 

Walk.  Ch.  307. 

COMPLAINANT   TO   REFER   EXCEPTIONS   IN   TEN   DAYS. 

Rule  28.  When  exceptions  to  an  answer  for  insufficiency  are 
not  submitted  to  within  the  time  prescribed  by  the  preceding 
rule,  the  complainant,  at  any  time  within  ten  days  thereafter, 
may  have  an  order  of  course  to  refer  the  exceptions  not  sub- 
mitted to  by  the  defendant  to  the  circuit  court  commissioner. 
If  the  exceptions  not  submitted  to  are  not  referred,  and  notice  of 
such  reference  given  wTithin  the  time  specified,  they  shall  be  con- 
sidered as  abandoned,  and  the  answer  as  to  such  exceptions 
shall  be  deemed  sufficient. 

REFERENCE  OF   SECOND   OR  THIRD   ANSWER,  FOR  INSUFFICIENCY. 

Rule  29.  If  a  complainant  refers  a  second  or  third  answer 
for  insufficiency  on  the  old  exceptions,  the  particular  excep- 
tions to  which  he  requires  a  further  answer  shall  be  stated  on 
the  order  of  reference.  And  if  he  does  not  refer  such  second 
or  th'rd  answer  for  insufficiency  within  ten  days  after  the  same 
is  put  in,  such  answer  shall  be  deemed  sufficient. 

EXCEPTIONS  FOR   SCANDAL  OR   IMPERTINENCE. 

Rule  30.  Exceptions  to  any  pleading  or  other  matter  pend- 
ing before  the  court  for  scandal  and  impertinence,  shall  be  taken 
in  the  same  manner  as  exceptions  to  an  answer  for  insufficiency; 


268  MICHIGAN    CHANCERY    RULES. 

and  may  be  submitted  to  in  like  manner,  and  within  the  same 
time.  If  tbey  are  not  submitted  to,  the  party  excepting  shall 
refer  them  in  the  same  manner,  or  they  shall  be  considered  as 
abandoned;  and  if  such  exceptions  are  to  an  answer,  the  answer 
thenceforth  shall  be  deemed  sufficient. 

WHEN      COMMISSIONER'S     REPORT      ON     EXCEPTIONS     TO     BE    OB- 
TAINED. 

Rule  31.  Whenever  an  answer  or  other  pleading  or  pro- 
ceeding is  referred  for  insufficiency,  scandal  or  impertinence, 
the  exceptions  shall  be  considered  as  abandoned,  if  the  party 
obtaining  the  reference  shall  not  procure  and  file  the  commis- 
sioner's report  within  fifteen  days  from  the  date  of  the  order  of 
reference,  unless  the  commissioner  shall,  within  that  time, 
certify  that  the  party  obtaining  such  reference  has  not  been 
guilty  of  an  unreasonable  delay,  and  that  further  time,  to  be 
specified  in  the  certificate,  is  necessary  to  enable  the  commis- 
sioner to  make  a  satisfactory  report;  in  which  case  the  excep- 
tions shall  be  considered  as  abandoned,  if  the  report  be  not 
obtained  within  the  further  time  so  stated.  And  if  the  excep- 
tions were  to  an  answer,  it  shall  henceforth  be  deemed  sufficient. 

COMMISSIONER  TO  FIX   TIME  FOR  PUTTING   IN  FURTHER  ANSWER. 

Rule  32.  If  on  a  reference  of  exceptions  to  an  answer,  or 
the  reference  of  a  second  answer  on  the  old  exceptions,  the  com- 
missioner shall  find  the  answer  insufficient,  he  shall  fix  a  time 
for  putting  in  a  further  answer  and  specify  the  same  in  his 
report. 

WHEN   REPORT   ON   EXCEPTIONS  TO  BECOME    ABSOLUTE— EXCEP- 
TIONS  TO  REPORT. 

Rule  33.  The  commissioner's  report  on  exceptions  shall  be 
delivered  to  the  party  obtaining  the  reference,  who  shall  forth- 
with file  the  same  in  the  proper  office;  and  if  he  does  not  except 
to  the  report  within  eight  days  thereafter,  it  shall  become  abso- 
lute as  against  him.  .  But  the  adverse  party  shall  have  eight  days 
after  service  of  notice  of  filing  the  report  to  except  to  the  same; 
and  if  he  does  not  except  within  that  time,  it  shall  become  abso- 
lute as  against  him,  without  any  order  for  that  purpose.  If  none 
of  the  exceptions  to  an  answer  are  submitted  to  by  the  defendant 
or  allowed  by  the  commissioner,  the   answer  shall  be  deemed 


MICHIGAN    CHANCERY    RULES.  209 

sufficient  from  the  time  such  report  becomes  absolute  as  against 
the  complainant. 

ORDER   TO    KXPUNGE  IMPERTINENT   MATTER — REPORT  DISALLOW- 
ING  EXCEPTIONS  FOR  SCANDAL,  ETC.,  TO   BE  FINAL. 

Rule  34.  If  the  commissioner  reports  that  any  tiling  contained 
in  any  pleading  or  proceeding  is  scandalous  or  impertinent,  the 
party  excepting,  on  filing  proof  that  the  report  has  become  abso- 
lute against  the  adverse  party,  may  have  an  order  of  course  that 
the  commissioner  making  the  report  expunge  the  scandalous  or 
impertinent  matter;  and  that  the  adverse  party  pay  the  costs  of 
the  exceptions  and  the  proceedings  thereon,  within  twenty  days 
after  the  service  of  a  copy  of  such  order  and  of  the  taxed  bill  on 
him  or  his  solicitor.  When  the  adverse  party  submits  to  the 
exceptions,  the  same  order  may  be  obtained  on  filing  the  notice 
of  submission.  If  the  commissioner  disallows  an  exception  for 
scandal  aud  impertinence,  his  report  shall  be  final,  and  no  excep- 
tions to  the  report  in  that  respect  shall  be  allowed;  but  it  shall 
not  preclude  the  party,  upon  the  hearing  of  the  cause,  or  upon 
the  taxation  of  the  general  costs  in  the  suit,  from  insisting  that 
the  matter  excepted  to  was  in  fact  impertinent. 

ORDER  FOR  FURTHER  ANSWER. 

Rule  85.  On  exceptions  to  answer  for  insufficiency,  if  all  the 
exceptions  are  submitted  to  by  the  defendant,  or  a  part  are 
submitted  to  and  the  rest  abandoned,  or  are  disallowed  on 
reference,  the  complainant  may  have  an  order  of  course,  that 
the  defendant  put  in  a  further  answer,  and  serve  a  copy  thereof, 
within  twenty  days  after  notice  of  the  order,  and  pay  the  costs 
of  the  exceptions. 

Har.  Ch.  228,  332;  12  Mich.  314. 

ORDER  FOR  FURTHER  ANSWER,  AFTER  REFERENCE. 

Rule  36.  If,  on  a  reference  of  exceptions,  or  the  reference  of 
a  second  answer  upon  the  old  exceptions,  the  answer  is  found 
insufficient,  and  the  commissioner's  report  has  become  absolute 
against  the  defendant,  the  complainant  may  have  a  similar  order 
of  course,  to  put  in  a  further  answer,  and  pay  the  costs,  within 
the  time  specified  in  the  commissioner's  report. 
Walk.  Ch.  307. 


270  MICHIGAN    CHANCERY    RULES. 

HILL   OF   COSTS  TO  BE   SERVED  BEFORE   EXPIRATION   OF   TIME  TO 
ANSWER— TIME  TO  ANSWER,  AFTER  AMENDMENTS  TO  ANSWER. 

Rule  37.  In  the  cases  specified  in  the  two  preceding 
rules,  the  defendant  shall  he  entitled  to  a  copy  of  the  taxed  bill 
of  costs  at  least  ten  days  before  the  time  for  putting  in  the 
further  answer  expires,  or  he  may  put  in  such  answer  without 
paying  the  costs.  But  the  complainant  may  afterwards  proceed 
by  execution  or  attachment  to  compel  payment  thereof,  if  they 
arc  not  paid  within  twenty  days  after  service  of  a  copy  of  the 
taxed  bill  on  the  defendant  or  his  solicitor.  And  if  the  com- 
plainant has  amended  his  bill,  so  as  to  require  an  answer  to  the 
amendments  as  well  as  the  exceptions,  the  defendant  shall  have 
the  same  time  to  auswerthe-amendments  and  exceptions  together 
as  he  originally  had  to  answer  the  bill;  and  the  order  to  answer 
'-hall  be  varied  accordingly. 

ORDER  PRO  CONFESSO,  OH  FOR  ATTACHMENT,  OR  NEGLECT  TO 

ANSWER. 

Role  38.  If  the  defendant  does  not  put  in  a  further  answer 
and  pay  the  costs  within  the  time  prescribed,  or  within  such 
further  time  as  may  be  allowed  by  the  court  for  that  purpose, 
the  complainant,  ou  filing  an  affidavit  showing  such  default,  may 
have  an  order  of  course  to  take  the  bill  as  confessed,  or  may 
move  for  an  attachment  against  the  defendant. 

HEARING  OF  EXCEPTIONS  TO   COMMISSIONER'S  REPORT   ON  EXCEP- 
TIONS—COSTS  ON   HEARING. 

Rule  39.  The  argument  of  exceptions  to  a  commissioner's 
report  on  exceptions  shall  be  heard  as  a  special  motion.  Either 
party  may  notice  the  same  for  hearing,  and  the  party  excepting 
to  the  report  shall  furnish  the  necessary  papers  for  the  court; 
and  if  he  neglect  to  do  so,  the  report  may  be  confirmed.  But  if 
both  parties  have  excepted  to  the  report,  each  shall  furnish 
copies  of  his  own  exceptions,  and  the  party  obtaining  the  refer- 
ence shall  furnish  such  other  papers  as  may  be  necessary.  The 
costs  of  the  hearing  on  exception-;  to  a  report  upon  exceptions 
shall  be  iu  the  discretion  of  the  court;  but  neither  part}7  shall  be 
entitled  to  costs  as  against  the  other,  unless  he  succeeds  as  to 
the  major  part  of  the  exceptions  to  the  report.  And  where  the 
parly  succeeding  as  to  the  major  part  does  not  succeed  as  to  all 
the  exceptions  to  the  report,    his    costs  of   the  hearing,    to  be 


MICHIGAN    CHANCERY    RULES.  271 

allowed  against  the  adverse  party  shall  not  be  taxed  at  a  sum 
exceeding  ten  dollars. 

COSTS  ON  EXCEPTIONS. 

Rule  40.  When  exceptions  are  taken  to  an  answer  for  insuffi- 
ciency, or  to  any  pleading  or  proceeding  for  scandal  or  imperti- 
nence, the  party  excepting  shall  be  entitled  to  the  costs  of  the 
exceptions  which  are  submitted  to,  and  those  which  are  finally 
allowed  after  reference  to  a  commissioner;  but  neither  party  shall 
be  entitled  to  costs  upon  the  reference  of  exceptions,  unless  he 
finally  succeeds  as  to  all  the  exceptions  which  are  referred.  The 
costs  on  exceptions  shall  not  be  taxed  until  all  exceptions  are 
submitted  to,  abandoned,  allowed,  or  finally  disposed  of;  and 
Ihen  the  whole  costs  to  which  the  exceptant  is  entitled  shall  be 
included  in  one  bill,  and  the  adverse  party  may  offset  any  costs 
to  which  he  is  entitled. 

FOR   WHAT  CAUSE   DEMURRER  OR   PLEA   NOT   TO   BE   OVERRULED. 

Rule  41.  No  demurrer  or  plea  shall  be  held  bad,  and  over- 
ruled upon  argument,  only  because  such  demurrer  or  plea  shall 
not  cover  so  much  of  the  bill  as  it  might  by  law  have  extended 
to. 

FOR  WHAT  CAUSE   DEMURRER   OR  PLEA  NOT   TO   BE   OVERRULED. 

Rule  42.  No  demurrer  or  plea  shall  be  held  bad,  and  over- 
ruled upon  argument,  only  because  the  answer  of  the  defendant 
may  extend  to  some  part  of  the  same  matter  as  may  be  covered 
by  such  demurrer  or  plea. 

WHEN   DEPENDANT   MAY   DECLINE   ANSWERING   PART   OF   BILL. 

Rule  43.  A  defendant  shall  be  at  liberty,  by  answer,  to  de- 
cline answering  any  part  of  the  bill  from  answering  which  he 
might  have  protected  himself  by  demurrer,  and  he  shall  be  at 
liberty  so  to  decline,  notwithstanding  he  shall  answer  other  parts 
of  the  bill  from  which  he  might  have  protected  himself  by  de- 
murrer. 

Walk.  Ch.  520. 

BILLS  OF  REVIVOR  AND    SUPPLEMENTAL  BILLS. 

Rule  44.  It  shall  not  be  necessary,  on  any  bill  of  revivor  or 
supplemental  bill,  to  set  forth  any  of  the  statements  in  the  orig- 
inal suit,  unless  the  special  circumstances  of  the  case  require  it. 


272  MICHIGAN    CHANCER?    RULES. 

See  H.  8.  ==S  6654,  6668;  Walk.  Ch.  6;  29  Mich.  72;  Har. 
Ch.  882,  438;  10  Mich.  117;  13  Mich.  463;  11  Mich.  56;  31 
Mich.  36;  14  Mich.  124;  16  Mich.  162;  32  Mich.  515;  40 
Mich.  317;  46  Mich.  511;  49  Mich.  595;  German  American 
Sem.  v.  Sawyer,  6(5  Mich.  (June  9,  1887);  53  Mich.  629. 

WHEN   CAUSE   DEEMED   AT    ISSUE — WHEN   TO   STAND    ON  BILL  AND 
ANSWER — NOTICE   OF   HEARINC 

Rule  45.  Every  cause  shall  be  deemed  at  issue  on  riling  a  gen- 
eral replication  to  the  answer,  and  no  special  replication  shall  be 
filed  but  by  leave  on  cause  shown.  If  the  complainant  does  not 
reply  to  the  defendant's  answer  within  twenty  days  after  it  is 
deemed  to  be  sufficient,  he  shall  be  precluded  from  replying,  and 
the  cause  shall  stand  for  hearing  on  bill  and  answer,  unless 
further  time  for  replying  be  granted  by  the  court,  upon  cause 
shown,  and  either  party  may  notice  it  for  hearing  as  soon  as  it  is 
in  readiness  for  hearing  against  the  other  defendants,  if  any  there 
are. 

SeeH.  S.  £6645;  Walk.  Ch.  389,  454;  37  Mich.  248;  56 
Mich.  3. 

DISMISSING   BILL   KOIt    WANT   OP   PROSECUTION. 

Rule  46.  In  any  suit  against  several  defendants,  if  the  com- 
plainant does  not  use  due  diligence  in  prosecuting  such  suit,  any 
of  said  defendants  may  apply  to  dismiss  the  bill  for  want  of 
prosecution,  and  on  such  application  further  time  shall  not  be 
allowed  to  complainant,  unless  on  good  cause  shown  for  the 
delay. 

Walk.  Ch.  356,  359;  Har.  Ch.  265;  24  Mich.  241. 

ORDER  TO   TAKE   PROOFS — WHEN   PROOFS     TO     BE     TAKEN,     AND 

WHEN  CLOSED — IF  NO   ORDER  ENTERED,  CASE   TO   STAND 

ON  PLEADINGS — FEIGNED  ISSUES — EXAMINATION 

OF  WITNESSES  IN  OPEN  COURT. 

Rule  47.  When  a  cause  is  at  issue,  if  neither  party  has  ob- 
tained the  right  of  an  examination  of  witnesses  in  open  court, 
either  party  desirous  of  taking  testimony,  may  at  any  time  within 
thirty  days  after  the  expiration  of  the  time  of  obtaining  the  right 
to  such  examination  in  open  court,  enter  an  order  of  course,  and 
give  notice  thereof  to  the  opposite  party,  for  the  taking  of  testi- 
mony within  sixty  days  from  the  service  of  notice  of  such  order, 
and  either  party  under  such  order  may,  at  any  time  within  the 
said  sixty  days  take  the  testimony  of  his  witnesses,  upon  giving 


MICHIGAN    OHANOEKY     RULES.  273 

ten  days'  notice  to  the  opposite  party  of  the  names  and  places  of 
abode  of  the  witnesses  to  be  examined,  and  of  the  time  and  place 
of  such  examination,  and  the  person  before  whom  the  same  will 
be  taken.  At  the  end  of  the  said  sixty  days,  either  party,  on  fil- 
ing an  affidavit  of  the  service  or  receipt  of  such  notice,  may  enter 
an  order  of  course  that  the  proofs  be  closed.  If  neither  party 
shall  obtain  an  order  for  taking  testimony  as  aforesaid,  or  for  an 
examination  of  witnesses  in  open  court,  the  cause  shall  stand  for 
hearing  on  pleadings,  and  may  be  noticed  by  either  party.  In 
cases  where  feigned  issues  have  been  in  use,  the  issue  shall  be 
made  hereafter  by  presenting  the  questions  to  be  tried  in  a  sim- 
ple form  upon  the  facts.  The  issue,  unless  agreed  upon,  shall 
be  framed  by  the  circuit  judge,  and  in  all  cases  shall  be  approved 
by  him. 

See  H.  S.  §§  6(547,  0648;  Walk.  Ch.  48;  Har.  Ch.  31;  Walk. 
Ch.  453,  48;  39  Mich.  123;  Walk.  Ch.  120,  384;  36  Mich. 77; 
Walk.  Ch.  45;  16  Mich.  223;  Walk.  Ch.200;  6  Mich.  217;  13 
Mich.  258;  Walk.  Ch.  449;  2  Mich.  381;  0  Mich.  133;  8 
Mich.  395;  9  Mich.  213;  10  Mich.  453;  11  Mich.  284.  529;  13 
Mich.  367;  16  Mich.  283;  24  Mich.  18;  28  Mich.  427;  29  Mich. 
289;  30  Mich.  282;  33  Mich.  101,  121;  8  Mich.  74;  26  Mich. 
443;  27  Mich.  214;  33  Mich.  347,  500;  9  Mich.  346;  11  Mich. 
284;  22  Mich.  212;  22  Mich.  242;  27  Mich.  4;  32  Mich.  193; 
29  Mich.  289;  54  Mich.  624;  54  Mich.  621;  49  Mich.  29;  55 
Mich.  136;  52  Mich.  552;  Goodrich  v.  Goodrich.  Mich.  (June 
23,  1887);  46  Mich.  489;  56  Mich.  3;  53  Mieh.  40;  48  Mich. 
388:  46  Mich.  08. 

WHEN   COMMISSION    MAY   BE  ISSUED  TO  TAKE   TESTIMONY. 

Rule  48.  If  the  party  wishes  to  examine  witnesses  residing 
out  of  the  state,  or  more  than  thirty  miles  from  the  residence  of 
a  circuit  court  commissioner,  or  when  all  the  circuit  court  com- 
missioners are  interested,  living  within  that  distance,  as  counsel 
or  otherwise,  either  party  may,  at  any  time  after  issue  is  joined 
and  before  proofs  are  closed,  as  prescribed  in  the  preceding  rule, 
or  when  the  case  is  at  default,  present  a  petition  to  the  register 
where  the  suit  is  pending,  stating  the  names  and  residences  of 
the  witnesses  and  of  the  person  or  persons  proposed  as  commis- 
sioners, and  praying  that  a  commission  may  be  issued  to  take 
the  examination  of  such  witnesses;  and  ten  days'  notice  of  the 
application  shall  be  given  to  the  adverse  party  if  he  has  appeared. 
If  the  adverse  party  does  not  appear  and  join  in  the  commission, 
18 


274  MICHIGAN    CHANCERY    RULES. 

or  object  to  the  persons  named  as  commissioners,  a  commission 
shall  be  issued  agreeably  to  the  prayer  of  the  petition. 
See  H.  S.  £0639. 

ADVERSE   PARTY    MAY  JOIN   IN   COMMISSION — WHEN   ONE  COMMIS- 
SIONER MAT   ACT  ALONE. 

Rule  49.  If  the  adverse  party  wishes  to  join  the  commission, 
he  must,  at  the  time  of  presenting  the  petition,  furnish  the  names 
and  residence  of  the  witnesses  on  his  part,  and  they  shall  be 
inserted  in  the  commission.  If  he  is  not  satisfied  with  the  com- 
missioners named  in  the  petition,  he  may  name  commissioners 
on  his  part;  and  the  register  to  whom  the  petition  is  presented, 
after  hearing  the  allegations  of  the  parties,  shall  designate  a 
suitable  person  or  persons  to  execute  the  commission,  and  issue 
the  same  accordingly;  but  any  of  the  commissioners  named  in 
the  commission  may  execute  the  same,  in  case  the  others  neglect 
or  refuse  to  join  in  the  execution  thereof,  or  they  are,  from 
any  cause,  prevented. 

WITNESSES  TO  BE  EXAMINED  ON  INTERROGATORIES — SETTLEMENT 
THEREOF. 

Rule  50.  Witnesses  to  be  examined  out  of  the  state  shall 
be  examined  on  written  direct  and  cross-interrogatories,  to  be 
allowed  by  a  circuit  court  commissioner  and  annexed  to  the 
commission.  Copies  of  interrogatories  proposed  shall  be  served, 
with  notice  of  an  application  for  the  allowance  thereof,  at  least 
five  days  before  the  time  fixed  for  such  application,  and  at  the 
time  and  place  of  the  settlement  of  such  interrogatories,  the 
adverse  party  shall  propose  his  cross-interrogatories,  unless  fur- 
ther time  is  allowed  him  for  that  purpose  by  the  officer  settling 
the  same. 

PETITION   FOR   SPECIAL   COMMISSION. 

Rule  51.  If  it  shall  be  necessary  to  have  a  commission  to 
take  the  examination  of  witnesses  in  any  case  not  provided  in 
the  preceding  rules,  the  party  may  present  a  petition  to  the 
circuit  judge,  or  circuit  court  commissioner  acting  as  an  injunc- 
tion master,  for  that  purpose,  setting  out  the  facts  which  entitle 
him  to  a  special  commission,  and  the  usual  notice  of  the  appli- 
cation shall  be  given  to  the  adverse  party. 


MICHIGAN    OHANUEKY    RULES.  275 


COMMISSION.    HOW   EXECUTED   AND   RETURNED. 

Rule  52.  To  every  commission  for  the  examination  of  wit- 
nesses out  of  the  state,  a  copy  of  this  rule  shall  be  annexed, 
as  instructions  to  the  commissioner  on  the  execution  of  the 
commission: 

1st.  Any  one  of  the  commissioners  may  execute  the  com- 
mission. 

2d.  The  witness,  before  he  is  examined,  must  take  an  oath 
or  affirmation,  to  be  administered  by  the  commissioner,  that 
the  answers  to  be  giveu  by  him  to  the  interrogatories  annexed 
to  the  commission  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth. 

3d.  The  examination  of  the  witnesses  must  be  reduced  to 
writing  by  the  commissioner,  or  by  some  one  in  his  presence 
and  under  his  direction,  and  must  be  signed  by  the  witness, 
and  certified    by  the  commissioner  as  follows: 

"Examination   taken,  reduced  to   writing,  and  sworn  to  (or 

affirmed)  this,  day  of  ,  A.  D.  ,  before  me, 

A.   B. ,  Commissioner." 

4th.  Exhibits  must  be  annexed  to  the  deposition  of  the 
witness,  and  be  signed  by  him  and  the  commissioner. 

5th.  The  commissioner  must  subscribe  each  sheet  of  the 
deposition,  annex  the  deposition  and  exhibits  to  the  commis- 
sion, and  endorse  his  return  on  the  back  of  the  commission: 

"  The  execution  of  this  commission  appears  in  certain  sched- 
ules hereunto  annexed.  A.  B.  Commissioner." 

6th.  The  commissioner  must  enclose  the  commission,  inter- 
rogatories, depositions  and  exhibits,  in  a  packet,  and  bind  it 
with  tape,  and  set  his  seal  at  the  several  meetings  or  crossings 
of  the  tape,  and  direct  it     "To  the   Register    of    the    Circuit 

Court  for  the  County  of  ,  in  Chancery,  at  ,  State 

of  Michigan." 

7th.  He  must  then  deposit  the  commission  in  the  postoffice, 
unless  there  are  written  directions  on  the  commission  to  return 
the  same  in  another  way. 

OPENING  AND  PILING   COMMISSION. 

Rule  53.  The  register,  on  the  commission  being  returned, 
shall  open  it,  and  endorse  thereon  the  time  and  manner  of 
receiving  it,  and  then  file  it. 

HOW   DEPOSITIONS   SUPPRESSED   FOR   IRREGULARITY — NOTICE    TO 
BE   GIVEN   OP   FILING. 

Rule  54.  No  deposition  will  be  suppressed  on  the  hearing 
of  a  cause  for  irregularity  or  informality  in  the  taking  of  the 
same,  but  the  question  must  be  brought  before  the  court  on  a 
special  motion  for  that  purpose,  before  the  cause  is  brought  to 


276  MICHIGAN    CHANCERY    RULES. 

a  hearing.  Upon  receiving  aDy  deposition  taken  within  or 
without  this  state,  on  commission  or  otherwise,  the  register 
shall  notify  the  solicitor  of  the  party  on  whose  behalf  it  was 
taken,  and  such  solicitor  shall  notify  the  opposite  solicitor,  and 
such  motion  shall  be  made  within  ten  days  after  the  solicitor 
making  the  same  shall  have  been  so  notified. 

Har.  Ch.  31;  19  Mich.  157;  42  Mich.  477. 

HOW   PARTY    AAT   BE   EXAMINED   AS     A     WITNESS — OBJECTION    TO 
TESTIMONY   ON   HEARING. 

Rule  55.  When  a  party  wishes  to  examine  a  defendant  as  a 
witness  against  a  co-defendant,  or  against  the  complainant,  he 
may,  at  any  time  within  twenty  days  after  he  has  received  or 
served  a  notice  of  the  rule  to  produce  witnesses,  on  filing  an  affi- 
davit that  such  defeudant  is  a  material  witness,  and  is  not  inter- 
ested in  a  matter  to  which  he  is  to  be  examined,  have  an  order  of 
course  for  the  examination  of  such  defendant  as  a  witness,  as  to 
any  matter  in  which  he  is  not  interested,  subject  to  all  just  ex- 
ceptions. And  such  defendant  shall  thereupon  be  examined  to 
such  matters,  in  the  same  manner  as  other  witnesses;  but  the 
adverse  party,  at  the  hearing,  may  object  to  the  competency  of 
his  testimony. 

PROVING  DOCUMENTS  AT  HEARING — WHEN  DEEDS,  ETC.,  MAY  BE 
READ  AT  HEARING  WITHOUT  PROOF. 

Rule  56.  Documents  which  are  of  themselves  evidence 
without  further  proof  shall  not  be  read  on  the  hearing,  unless 
they  have  been  made  exhibits  before  the  commissioner;  and  no 
deed  or  other  writing  shall  be  proved  at  the  hearing;  except  on 
an  order  previously  obtained  after  due  notice  to  the  adverse 
party.  But  where  any  deed  or  other  instrument  in  writing  which 
is  duly  acknowledged  or  proved  in  such  manner  as  to  authorize 
it  to  be  read  in  evidence,  is  stated  in  the  bill,  or  where  any 
judgment  or  other  matter  of  record  is  set  out  or  distinctly  stated 
in  the  bill,  such  deed  or  instrument,  or  au  authenticated  copy  of 
the  record,  may  in  all  cases  be  read  upon  the  hearing  of  the 
cause,  unless  the  defendant  in  his  answer  denies  the  due  execu- 
tion of  said  deed  or  instrument,  or  the  existence  of  such  record, 
either  positively  or  according  to  his  belief. 

Walk.  Ch.  449;  Har.  Ch.  225;  3  Mich.  482;  14  Mich.  514; 
42  Mich.  304. 


MICHIGAN    CHANCERY    RULES.  277 

COMPELLING    ATTENDANCE    OF   WITNESSES    BEFORE     COMMISSION- 
ERS. 

Rule  57.  Process  of  subpoena  to  compel  the  attendance  of 
witnesses  before  a  commissioner  shall  issue  of  course,  and  the 
time  and  place  of  attendance  shall  be  specified  in  the  writ;  and 
such  witnesses  may  be  punished  if  they  fail  to  attend  and  submit 
to  an  examination.  But  no  witness  shall  be  compelled  to  appear 
before  a  commissioner  more  than  forty  miles  from  his  place  of 
residence,  unless  by  special  order  of  the  court. 
See  H.  S.  §§6632,  7257,  7483,  7484. 

COMMISSIONER   TO   RETURN    AND   FILE   DEPOSITIONS. 

Rule  58.  Within  ten  days  after  notice  of  the  order  to  close 
the  proofs,  the  commissioner,  on  being  applied  to  for  that  pur- 
pose by  either  party,  shall  cause  the  depositions  and  exhibits 
taken  or  produced  before  him  to  be  returned  and  filed  with  the 
register.  No  copy  of  any  deposition  or  exhibit  shall  be  read  on 
the  hearing,  unless  the  original  has  been  returned  and  filed  in 
the  proper  office. — As  amended  April  27,  1871. 

ORDERS  TO  ENLARGE  TIME  TO  PRODUCE  WITNESSES. 

Rule  59.  An  order  to  enlarge  the  time  for  the  examination 
of  witnesses  may  be  granted,  on  sufficient  cause  shown,  without 
notice  to  the  adverse  party;  but  an  ex  parte  order  shall  not  be 
granted  after  the  time  for  the  examination  of  witnesses  has  actu- 
ally expired,  nor  shall  a  second  order  be  granted  to  the  same 
party,  except  on  the  usual  notice  of  the  application  to  the  ad- 
verse part}',  and  upon  such  terms  as  the  court  may  prescribe. 
Walk.  Ch.  384. 

NOTICE   OF   HEARING. 

Rule  GO.  After  the  proofs  are  closed,  either  party  may  notice 
the  cause  for  hearing  at  the  next  or  some  subsequent  term.  It 
shall  not  be  necessary  in  any  case  to  obtain  an  order  to  set  a 
cause  down  for  hearing;  but  when  a  cause  is  in  readiness  for 
hearing,  on  plea  or  demurrer,  bill  and  answer,  pleadings  and 
proofs,  exceptions  to  a  commissioner's  report,  or  on  the  equity 
reserved,  either  party  may  notice  the  same  for  hearing,  and  have 
the  cause  entered  on  the  calendar  of  causes  for  the  term. 

37  Mich.  166;  Har.  Ch.  265;  47  Mich.  513,  515;  Zable  v. 
Hatshman,  68  Mich.  (July  12,  1888);  Turner  v.  Hart,  71 
Mich.  (July  11,  1888);  50  Mich.  252;  Davenport  v.  Att.  Gen. 


278  MICHIGAN    CHANCERY    RULES. 

70  Mich.  (May   11,    1888);    Goodrich    v.    Goodrich,  Mich. 
(June  23,  1887). 

TIME   ON  NOTICES,    ETC. — COPIES  OF  PAPERS   ON   MOTIONS  TO  BE 
SERVED. 

Rule  61.  All  notices  of  hearing,  or  of  special  motions,  or  of 
the  presenting  of  petitions,  when  required,  shall  be  notices  of  at 
least  eight  days,  if  the  solicitor  of  the  adverse  party  resides  over 
one  hundred  miles  from  the  place  where  the  court  is  to  be  held ; 
if  over  fifty  and  not  exceeding  one  hundred,  six  days'  notice 
shall  be  given;  and  in  all  other  cases  at  least  four  days.  And  a 
copy  of  the  petition,  affidavit  or  certificate  on  which  any  special 
application  is  founded,  shall  be  served  on  the  adverse  party  the 
same  length  of  time  previous  to  making  the  application  to  the 
court. 

Har.  Ch.  255. 

CASE,  AND   ABBREVIATION   OF   PLEADINGS. 

Rule  62.  When  a  cause  is  submitted  or  heard  on  bill,  answer 
and  replication,  or  on  the  pleadings  and  proofs,  if  the  parties  do 
not  agree  upon  a  case  to  be  signed  by  them,  containing,  with  all 
requisite  brevity,  a  statement  of  the  pleadfngs  and  proofs,  the 
complainant  shall  furnish  the  court  with  a  case,  stating  the 
time  of  filing  the  bill,  and  of  the  answer  and  other  pleadings 
respectively,  the  names  of  the  original  parties  in  full,  the  change 
of  parties,  if  any  has  taken  place  pending  the  suit,  and  a  very 
brief  history  of  the  proceedings  in  the  cause;  and  containing  an 
abbreviation  of  the  pleadings,  not  exceeding  one-sixth  of  the 
number  of  folios  contained  in  the  original  pleadings  respect- 
ively. 

HOAV   CALENDAR  TO  BE   MADE   UP. 

Rule  63.  In  making  up  the  calendar,  causes  to  be  heard  on 
bills  taken  as  confessed  shall  have  a  preference,  and  shall  be 
entered  according  to  priority,  from  the  date  of  the  order  to 
take  the  bill  as  confessed.  Pleas  and  demurrers  shall  consti- 
tute the  second  class  of  causes,  and  have  priority  from  the 
time  when  the  plea  or  demurrer  was  filed.  Causes  to  be  heard 
on  bill  and  answer  shall  occupy  the  third  place  on  the  calen- 
dar, and  have  priority  from  the  time  when  the  answer  was  put 
in.  Those  which  are  to  be  heard  on  the  pleadings,  or  on 
pleadings  and  proofs,  shall  form  the  fourth  class,  and  have  pri" 


.MICHIGAN    CHANCERY    RULES.  279 

ority  from  the  time  when  the  replication  was  filed.  Causes  to  be 
heard  on  exceptions,  or  upon  the  equity  reserved  in  a  decretal 
order,  shall  be  placed  in  the  class  to  which  they  belonged  be- 
fore the  decretal  order  or  reference,  and  according  to  their 
priority  as  it  then  existed;  and  causes  for  rehearing  shall  be 
arranged  in  the  same  manner.  But  the  court,  in  the  hearing 
of  the  calendar  causes,  may,  in  its  discretion,  give  a  preference 
to  any  particular  cause,  or  description  of  causes,  over  others  in 
the  calendar.  And  mortgage  cases  of  the  fourth  class  shall  be 
entitled  to  a  preference  over  any  other  causes  of  the  same 
class,  unless  the  defendant,  before  the  cause  is  heard,  shall  file 
with  the  register  an  affidavit  that  he  has  a  good  and  meritori- 
ous defence,  and  that  his  answer  was  not  put  in  for  the  purpose 
of  delay;  the  tiling  of  which  affidavit  he  shall  have  noted  on 
the  calendar. 

See  H.  S.  §0628;  38  Mich.  662. 

CAUSE   TO   BE     NOTICED    FOR    FIRST    DAY    OF    TERM — NOTICE   TO 
REGISTER. 

Rule  64.  Causes  shall  be  noticed  for  hearing  for  the  first 
day  of  the  term.  The  notice  to  the  register,  specifying  the  class 
to  which  the  cause  belongs,  and  the  time  from  which  it  is  en- 
titled to  priority,  shall  be  delivered  to  the  register,  who  is  to 
make  the  calendar,  four  days  previous  to  the  commencement 
of  the  term.  But  if  the  cause  is  not  in  readiness  for  hearing 
in  time  to  notice  it  for  the  first  day  in  term,  it  may  be  noticed 
for  a  subsequent  day  in  term  and  placed  at  the  foot  of  the 
calendar;  and,  if  the  bill  has  been  taken  as  confessed,  may  be 
heard  out  of  its  regular  order. 

29  Mich.  2'28;  37  Mich.  166;  38  Mich.  062. 

PAPERS   TO    BE   FURNISHED   ON   HEARING — ON   A   REHEARING. 

Rule  65.  When  a  cause  is  heard  or  submitted  on  plea  or 
demurrer,  or  on  bill  and  answer  (except  iu  mortgage  or  partition 
causes  where  the  complainant's  rights  are  not  contested),  the 
court  shall  be  furnished  with  copies  of  the  pleadings,  and  an 
abbreviation  thereof  not  exceeding  one-sixth  of  the  number  of 
folios  contained  in  the  originals.  If  it  is  heard  on  bill,  answer 
and  replication,  or  on  pleadings  and  proofs,  in  additiou  to  the 
case  required  by  the  sixty-second  rule,  the  court  shall  be  fur- 
nished with  copies  of  the  pleadings,  and  of   the    depositions,  if 


380  MICHIGAN    CHANCERY    KULE8. 

any,  and  with  short  abstracts  of  the  exhibits.  On  a  rehearing,  a 
copy  of  the  decree  or  order  reheard  shall  be  furnished,  and 
copies  of  the  pleadings,  abstracts,  case,  depositions,  etc.,  on 
which  the  same  was  founded.  Upon  exceptions  to  a  commis- 
sioner's report,  copies  of  the  order  of  reference,  report  and  excep- 
tions, and  of  such  part  of  the  evidence  before  the  commissioner, 
and  of  the  pleadings,  as  are  material  for  the  decision  of  the 
exceptions,  shall  be  furnished.  And  in  all  cases  the  necessary 
papers  shall  be  delivered  to  the  court  when  the  hearing  of  the 
cause  shall  commence. 

BY  WHOM  PAPERS  TO  BE  FURNISHED — POINTS  TO   BE   DELIVERED. 

Rule  66.  If  the  cause  is  heard  or  submitted  on  plea  or  de- 
murrer, or  on  exceptions  to  a  commissioner's  report,  or  on  a 
rehearing,  the  necessary  papers  shall  be  furnished  by  the  party 
pleading,  demurring  or  excepting,  or  who  obtaiued  the  rehear- 
ing. In  all  other  cases  the  papers  shall  be  furnished  by 
the  complainant,  except  that  on  an  original  hearing  upon 
pleadings  and  proofs,  each  party  shall  furnish  copies  of  the 
testimony  and  abstracts  of  the  exhibits  on  his  part  only.  And 
each  party  shall  deliver  to  the  court  and  to  the  adverse  party 
a  copy  of  the  points  on  which  he  relies;  and  may  also  deliver 
to  the  court  and  to  the  adverse  party  a  draft  of  the  minutes 
of  the  decree  to  which  he  conceives  himself  entitled. 

PAPERS  TO  BE  LEGIBLY  WRITTEN — HOW    ENTITLED. 

Rule  67.  All  bills,  answers  and  other  proceedings,  and  copies 
thereof,  shall  be  fairly  and  legibly  written,  and  if  not  so  written, 
the  register  shall  not  file  such  as  may  be  offered  to  him  for  that 
purpose;  and  in  the  entitling  and  endorsement  of  papers  by  either 
party  the  complainant's  name  shall  be  placed  first. 
Const.  Art.  18,  sec.  6;  See  H.  S.  §  7251. 

DEFAULT  AT  THE   HEARING. 

Rule  68.  If  the  cause  is  noticed  for  hearing  on  the  part  of 
defendant,  and  the  complainant  does  not  appear  to  argue  on 
his  part,  or  does  not  furnish  the  necessary  papers,  agreeably  to 
the  preceding  rule,  the  bill  maybe  dismissed  with  costs.  If 
noticed  on  the  part  of  the  complainant,  and  the  defendant  dues 
not  appear  at  the  hearing  and  furnish  the  necessary  papers  on  his 
part,  the  complainant  may  have  such  decree  as  be  is  entitled  to 


MICHIGAN    CHANCERY    RULES.  281 

by  the  defendant's  default,  according  to  the  usual  course   and 
practice  of  the  court. 

Walk.  Ch.  31.  72;  28  Mich.  359;  30   Mich.    160;  25  Mich. 
149;  43  Mich.  367. 

MANNER   OK   SUBMITTING    CAUSES. 

Rule  69.  All  .submissions  shall  tie  in  writing,  signed  by  the 
necessary  parties  or  their  solicitors,  and  shall  be  delivered  to  the 
register  with  the  necessary  copies  and  papers.  On  special  mo- 
tions and  petitions,  as  well  as  in  calendar  causes,  he  shall  mark 
the  papers  and  note  them  in  his  minutes,  as  on  a  hearing;  and  he 
shall  not  enter  the  submission  until  all  the  necessary  copies  and 
papers  are  furnished,  as  required  by  the  rules  of  the  court. 

PROCEEDINGS     ON     OKOER     OP     REFERENCE — SUMMONS     AND    ITS 
SERVICE. 

Role  70,  When  a  matter  is  referred  to  a  commissioner,  to  ex- 
amine and  report  thereon,  on  bringing  the  decree  or  order  into 
his  office  he  shall  assign  a  day  and  place  for  hearing  the  parties, 
and  give  to  the  party  bringing  in  such  decree  or  order  a  sum- 
mons for  the  adverse  part}'  to  attend  at  the  day  and  place  so 
appointed.  The  summons  shall  be  served  on  the  adverse  party 
or  his  solicitor  such  time,  previous  to  the  day  appointed  forbear- 
ing, as  the  commissioner  may  deem  reasonable  and  direct,  taking 
into  consideration  the  nature  of  the  matter  to  be  examined,  and 
the  residence  of  the  parties.  But  the  time  of  service,  unless  other 
wise  ordered  by  the  court,  shall  not  be  less  than  two  days,  when 
the  solicitor  of  the  adverse  party  resides  in  the  city  or  town 
where  the  hearing  is  to  take  place;  and  not  less  than  four  days 
when  he  resides  elsewhere,  not  exceeding  fifty  miles  from  the 
place  of  hearing;  not  less  than  six  days,  if  over  fifty  and  not  ex- 
ceeding one  hundred  miles;  and  not  less  than  eight  days  when  he 
resides  more  than  one  hundred  miles  from  the  place  of  hearing. 
Walk.  Ch.  357,  391,  42;;,  453;  Har.  Ch.  436. 

PARTY   ENTITLED     TO     PROSECUTE     ORDER     OF     REFERENCE     TO 
PROCEED   IN   THIRTY   DAYS. 

Rule  71.  If  the  party  who  is  entitled  to  prosecute  such  de- 
cree or  order  of  reference  does  not  procure  and  serve  such  sum- 
mons within  thirty  days  after  the  decree  or  order  is  entered,  any 
other  party  or  person  interested  in  the  matter  of  reference  shall 
be  at  liberty  to  apply  to    the  court,    by  motion  or  petition,  to  ex- 


282  MICHIGAN    CHANCERY    RULES. 

pedite  the  prosecution  of  the  decree  or  order;  and  after  the 
proceedings  have  been  commenced,  by  the  service  of  a  summons 
to  attend  before  the  commissioner,  if  the  party  entitled  to  prose- 
cute such  decree  or  order  does  not  proceed  with  due  diligence, 
the  commissioner  shall  be  at  liberty,  upon  the  application  of  any 
other  person  interested,  either  as  a  party  to  the  suit,  or  as  com- 
ing in  to  prove  his  debt,  or  establish  a  claim  under  the  decree  or 
order,  to  commit  to  him  the  prosecution  of  the  reference. 

PROCEEDINGS   IN   COMMISSIONER'S   OFFICE. 

Rule  72.  At  the  time  and  place  appointed  in  the  summons 
for  hearing  the  parties,  the  commissioner  shall  proceed  to  regu- 
late, as  far  as  may  be,  the  manner  of  its  execution;  as,  for  exam- 
ple, to  state  what  parties  are  entitled  to  attend  future  proceed- 
ings, to  direct  the  necessary  notices,  and  to  point  out  which  of 
the  several  proceedings  may  properly  be  going  on  pari  passu; 
and  as  to  what  particular  matters  interrogatories  for  the  exami- 
nation of  the  parties  appear  to  be  necessary;  and  whether  the 
matters  requiring  evidence  shall  be  proved  by  affidavit,  or  by  the 
examination  of  witnesses;  and  if  the  commissioner  shall  think  it 
expedient  so  to  do.  he  may  then,  or  upon  any  subsequent  attend- 
ance, and  from  time  to  time,  as  circumstances  may  require,  fix 
the  time  within  or  at  which  any  proceedings  before  him  shall  be 
had;  and  he  may  proceed  de  die  in  diem,  or  by  adjournment 
from  time  to  time,  as  he  may  think  proper. 

EXAMINATION   OF    BOOKS,    ETC.,    BEFORE   COMMISSIONER. 

Rule  73.  Where,  by  any  decree,  or  order  of  the  court,  books, 
papers  or  writings  are  directed  to  be  produced  before  the  com- 
missioner for  the  purpose  of  such  decree  or  order,  it  shall  be  in 
the  discretion  of  the  commissioner  to  determine  what  books, 
papers  or  writings  are  to  be  produced,  and  when  and  for  how 
long  they  are  to  be  left  in  his  office;  or,  in  case  he  should  deem 
it  necessary  that  they  should  be  left  or  deposited  in  his  office, 
then  he  may  give  directions  for  the  inspection  thereof  by  the 
parties  requiring  the  same,  at  such  time  and  in  such  manner  as 
he  may  deem  expedient. 

WHEN   COMMISSIONER   MAY   PROCEED  EX  PARTE. 

Rule  74.  Where  some,  or  one,  but  not  all  of  the  parties,  do 
attend  the  commissioner  at  the  time  and  place  appointed,  the 
commissioner  shall  be  at  liberty  to  proceed  ex  parte,  if  he  thinks 


MICHIGAN    CHANCERY    RULES.  28. 

it  expedient  so  to  do,  considering  the  nature  of  the  case;  and  if 
he  has  proceeded  ex  parte,  such  proceeding  shall  not  in  any  man- 
ner be  reviewed  by  him,  unless,  upon  special  application  to  him 
for  that  purpose  by  the  party  who  was  absent,  the  commis" 
sioner  shall  be  satisfied  such  party  was  not  guilty  of  willful  delay 
or  negligence,  and  then  only  upon  payment  of  all  costs  occasioned 
by  his  non-attendance;  and  such  costs  to  be  certified  by  the  com- 
missioner at  the  time,  and  paid  by  the  party  or  his  solicitor 
before  he  shall  be  permitted  to  proceed  on  the  warrant  to  review; 
and  every  summons  to  attend  before  a  commissioner  shall  be 
considered  peremptory. 

HOW   COMMISSIONER  TO   TAKE   TESTIMONY. 

Rule  75.  The  commissioner  shall  be  at  liberty  to  examine 
any  witness  or  party,  or  any  creditor  or  other  person  coming  in 
to  claim  before  him,  either  upon  written  interrogatories  or  viva 
wee,  or  in  both  modes,  as  the  nature  of  the  case  may  appear  to 
him  to  require;  the  examination  or  evidence  being  taken  down 
at  the  time  by  the  commissioner,  or  by  his  clerk  in  his  presence, 
and  preserved,  in  order  that  the  same  may  be  used  by  the  court, 
if  necessary. 

See  H.  S.  §§  6643,  6644;  Walk.  Ch.  48;  Har.   Ch.  31;  37 
Mich.  116;  40  Mich.  493;  43  Mich,  171. 

PROCEEDINGS     OF    COMMISSIONER     ON    EXCEPTIONS — EXCEPTIONS 
TO   REPORT  THEREON. 

Rule  76.  If  a  party  wishes  to  complain  of  any  matter  intro" 
duced  into  any  state  of  facts,  affidavit,  or  other  proceeding 
before  the  commissioner,  on  the  ground  that  it  is  scandalous  or 
impertinent,  or  that  any  examination  of  a  party  before  him  is 
insufficient,  such  party  shall  be  at  liberty  to  file  exceptions  there- 
to with  the  commissioner;  and  the  commissioner  shall  have 
authority  to  expunge  any  such  matter  which  he  shall  find  to  be 
scandalous  or  impertinent.  And  where  the  matter  is  excepted 
to  as  scandalous  or  impertinent,  if  the  commissioner  disallows 
the  exceptions,  his  decision  thereon  shall  be  final  as  to  the  excep- 
tions which  are  disallowed;  but  this  shall  not  preclude  the  party 
from  insisting  upon  the  impertinence  at  the  hearing  of  the  cause, 
or  upon  any  subsequent  proceeding  founded  on  the  commis- 
sioner's report  upon  the  reference,  or  upon  the  taxation  of  the 
general  costs  of  the  cause,  or  of  the  reference.     And  in  deciding 


284  MICHIGAN    CHANCERY    RULES. 

on  the  sufficiency  or  insufficiency  of  the  examination  of  a  party, 
or  of  an  answer  to  a  bill,  the  commissioner  shall  always  take 
into  consideration  the  relevancy  or  materiality  of  the  statement 
or  question  referred  to  in  the  exception.  On  exceptions  to  the 
commissioner's  report,  or  to  his  certificate  of  the  sufficiency  or 
insufficiency  of  the  examination,  the  parties  shall  be  confined  to 
the  objections  taken  before  the  commissioner. 

HOW   ACCOUNTS  TAKEN   BEFORE   COMMISSIONER. 

Rule  77.  All  parties  accounting  before  a  commissioner  shall 
bring  in  their  accounts  in  the  form  of  debtor  and  creditor;  and 
any  of  the  other  parties  who  shall  not  be  satisfied  with  the 
accounts  so  brought  in.  shall  be  at  liberty  to  examine  the 
accounting  party  upon  interrogatories,  as  the  commissioner  may 
direct.  On  any  reference  to  take  or  state  an  account,  the  com- 
missioner shall  be  at  liberty  to  allow  interest  as  shall  be  just  and 
equitable,  without  any  special  direction  for  that  purpose,  unless 
a  contrary  direction  is  contained  in  the  order  of  reference.  And 
every  charge,  discharge,  or  state  of  facts,  brought  in  before  a 
commissioner,  shall  be  verified  by  oath  as  true,  either  positively 
or  upon  information  and  belief. 

18  Mich,  12;  43  Mich.  613;  56  Mich.  632;  46  Mich.  587; 
Low  v.  Hill,  66  Mich.  (Oct.  20,  1887);  Killefer  v.  Lone.  70 
Mich.  (June  8,  1888). 

COMMISSIONER   MAY   MAKE   SEPARATE   REPORTS. 

Rule  78.  In  all  matters  referred  to  a  commissioner,  he  shall 
be  at  liberty,  upon  the  application  of  any  party  interested,  to 
make  a  separate  report  or  reports,  from  time  to  time,  as  he  shall 
deem  expedient ;  I  he  costs  of  such  separate  reports  to  be  in  the  dis- 
cretion of  the  court.  And  where  the  commissioner  shall  make  a 
separate  report  of  debts  or  legacies,  he  shall  be  at  liberty  to  make 
such  certificate  as  he  thinks  fit,  with  respect  to  the  state  of 
assets;  and  any  p  rson  interested  shall  thereupon  be  at  liberty  to 
apply  to  the  court  as  he  shall  be  advised. 

ORDER   TO   CONFIRM   REPORT. 

Rule  79.  After  the  report  is  filed,  either  party  may  have  an 
order  of  course  to  confirm  the  same,  unless  cause  to  the  contrary 
thereof  be  shown  in  eight  days  after  notice  of  its  being  filed;  and 
if  no  exceptions  are  filed  and  served  within  that  time,  the  order 
shall  become  absolute  of  course,  without  further  order;  or  either 


MICHIGAN    CHANCER!     RULES.  285 

party  may  file  exceptions,  and  have  an  order  of  course  to  con- 
firm the  report,  so  far  as  the  same  is  not  excepted  to,  and  with 
the  like  effect 

Walk  Ch.  19,  23,  45;  12  Mich.  314;  Walk.  Ch.  23;  14  Mich. 

532;  17  Mich.  386;  18  Mich.  255;  20  Mich.  212;  23  Mich.  412; 

40  Mich.  1;  33  Mich.  307;  33  Mich.  298. 

ENROLLMENT  OP  DECREE — FROM  WHAT  OFFICE  I'ROCESS  TO  ISSDF 
THEREON— SALE. 

Rule  80.  No  process  shall  be  issued,  or  other  proceedings 
had  on  any  final  decree,  until  the  same  is  duly  enrolled.  And 
such  process,  unless  otherwise  specially  directed  by  the  court, 
shall  be  sealed  and  issued  by  the  register,  who  shall  not  suffer 
any  process  to  pass  his  seal,  if  it  does  not  appear  to  be  duly 
warranted.  If  a  commissioner  is  directed  to  sell  real  estate 
under  such  decree,  he  may  give  the  requisite  notice  of  sale 
previous  to  enrollment;  but,  to  protect  the  title  of  the  purchaser, 
the  party  for  whose  benefit  the  sale  is  made  shall  cause  the 
decree  to  be  enrolled,  and  produce  a  certificate  thereof,  before 
any  conveyance  shall  be  executed  by  the  commissioner.  And 
where  any  previous  decree  or  deeretal  order  disposes  of  any 
part  of  the  merits  of  the  cause,  or  is  necessary  to  explain  the 
final  decree,  it  shall  either  be  recited  therein  or  enrolled  there- 
with, as  a  part  of  the  final  decree  in  the  cause. 

H.  S.  §§  6597,  6648, 6649,  6653,  6707, 6708,  6737,  6739,  7255, 
7256,  76:J9,  7643;  Walk.  Ch.  6,  72,  494;  18  Mich.  255;  13 
Mich.  463;  15  Mich.  253;  19  Mich.  142;  36  Mich.  77; 
43  Mich.  233;  36  Mich.  297;  36  Mich.  64;  43  Mich.  192: 
42  Mich.  131;  15  Mich.  253;  33  Mich.  268;  32  Mich.  13; 
33  Mich.  63;  33  Mich.  298;  33  Mich.  337-500;  35  Mich  189; 
39  Mich.  313;  40  Mich.  232;  42  Mich  304;  39  Mich.  55;  47 
Mich.  512;  61  Mich.  35;  59  Mich.  296;  52  Mich.  174;  63 
Mich.  704;  Atkiuson  v.  Flannigan,  70  Mich.  (June  15,  1888); 
German  Seminary  v.  Sawyer,  66  Mich.  (June  9,  1887);  123 
U.  S.  233;  62  Mich.  614;  44  Mich.  240;  43  Mich.  272;  54 
Mich.  323;  48  Mich.  375;  Brick  v.  Brick,  65  Mich.  (Keb. 
15,  1887);  45  Mich.  1;  48  Mich.  618;  53  Mich.  77;  46  Mich. 
489;  56  Mich.  3;  58  Mich.  429;  Edgar  v.  Burck,  65  Mich. 
(April  14,  1887);  43  Mich.  367;  55  Mich.  276;  53  Mich.  543; 
56  Mich.  291;  55  Mich.  40;  61  Mich.  35;  59  Mich.  295;  46 
Mich.  511;  57  Mich.  421. 

MANNER  OF   APPLYING   FOR   REnEARING. 

Rule  81.  A  petition  for  a  reheariug  shall  state  the  special 
matter  or  cause  on  which  such  rehearing  is   applied    for,  and 


286  MICHIGAN    CHANCERY    RULES. 

the  particular  points  in  which  the  decree  or  order  is  alleged 
to  be  erroneous,  but  it  shall  not  be  necessary  to  state  the  pro- 
ceedings anterior  to  such  decree  or  order  sought  to  be  reversed; 
and  the  facts,  if  they  do  not  appear  from  the  records  of  the 
court,  shall  be  verified  by  affidavit  of  the  party,  or  of  some 
other  person.  It  shall  also  be  accompanied  by  the  certificate 
of  two  counsel,  that  they  have  examined  the  case,  and  that  in 
their  opmion  the  decree  or  order  is  erroneous  in  the  particulars 
mentioned  in  the  petition.  And  a  copy  of  the  petition,  with 
the  usual  notice  of  presenting  the  same,  shall  be  served  on  the 
adverse  party,  but  the  rehearing  shall  not  be  considered  as  a 
matter  of  course  in  any  case. 

Har.  Ch.  221;  Walk.  Ch.  359-446;  38  Mich.  662;  15  Mich. 
519;  25  Mich.  16;  26  Mich.  484;  38  Mich.  443;  24  Mich.  387. 

ORDER   TO   STAY   PROCEEDINGS,  AND   SERVICE  THEREOF. 

Rule  82.  Where  a  party  is  entitled  to  an  order  to  stay  pro- 
ceedings, or  for  temporary  relief  until  he  has  time  to  give  reg- 
ular notice  of  a  motion,  or  of  presenting  a  petition  for  a  re- 
hearing, or  for  any  other  purpose,  he  may  make  an  ex  parte 
application  to  the  court,  or  judge,  or  commissioner,  acting  as 
injunction  master,  for  an  order  that  the  adverse  party  show 
cause  why  the  motion  or  the  prayer  of  the  petition  should  not 
be  granted,  or  to  stay  proceedings,  or  for  other  temporary  relief 
in  the  meantime.  And  the  adverse  party  shall  be  served  with  a 
copy  of  the  order,  and  of  the  petition,  affidavit  or  certificate  on 
which  it  is  founded,  the  same  length  of  time  before  the  day 
for  showing  cause  as  is  required  in  the  ordinary  case  of  special 
motions,  unless  the  court,  or  judge,  or  commissioner,  shall 
specially  direct  a  shorter  notice  to  be  given. 

DEPOSIT   ON   REHEARING. 

Rule  83.  If  a  rehearing  is  granted,  the  petitioner  shall  lose 
the  benefit  thereof,  unless  he  shall,  within  ten  days  thereafter, 
deposit  with  the  register  fifty  dollars,  to  answer  the  costs  and 
damages  of  the  adverse  party,  if  the  decree  or  order  shall  not 
be  materially  varied. 

AGREEMENTS  BETWEEN   PARTIES   TO   BE   IN   WRITING. 

Rule  84.  No  private  agreement  or  consent  between  the 
parties,  in  respect  to    the    proceedings    in    the   cause,  shall  be 


MICHIGAN    CHANCERY    RULES.  287 

alleged  or  suggested  by  either  of  them  against  the  other,  unless 
the  same  shall  have  been  reduced  to  the  form  of  an  order  by 
consent,  and  entered  in  the  book  of  common  orders;  or  unless 
the  evidence  thereof  shall  be  in  writing,  subscribed  by  the 
party  against  whom  it  is  alleged  or  suggested,  or  by  his  solic- 
itor or  counsel. 

Walk.  Ch.  23-389;  Har.  Ch.  438;  20  Mich.  195. 

TIME   ON   RULES  AND    ORDERS. 

Rule  85.  All  rules  to  take  effect  nisi,  etc.,  unless  otherwise 
specially  directed,  shall  be  rules  of  eight  days;  and  the  time  on 
all  rules,  orders,  notices  and  proceedings,  where  a  time  is  given 
or  stated,  shall,  unless  otherwise  expressly  provided,  be  deemed 
and  taken  to  be  one  day  inclusive  and  one  day  exclusive,  but 
if  the  time  expires  on  Sunday,  the  whole  of  the  succeeding  day 
shall  be  included. 

extending  time  and  setting  aside  defaults. 
Rule  86.  The  court,  or  commissioner  acting  as  injunction 
master,  upon  special  cause  shown,  may  extend  the  time  for  put- 
ting in  or  serving  any  pleading  or  exceptions,  or  for  any  other 
proceeding  which  is  required  by  the  rules  of  the  court  to  be  done 
within  a  limited  time;  and  the  court  may  set  aside  any  order  or 
decree,  obtained  by  default  or  otherwise,  upon  such  terms  as  may 
be  deemed  just  and  proper. 

Walk.  Ch.  31,  72,  384;  Har.  Ch.  241,  426,  265;  14  Mich. 
514. 

ACCOUNT  OF   MONET   DEPOSITED,    HOW    KEPT. 

Rule  87.  The  accounts  of  the  register  with  the  banks  in 
which  the  moneys  are  directed  to  be  deposited,  shall  be  kept  in 
such  a  manner  that  in  the  cash  books  of  the  banks,  and  in  the 
bank  books  of  the  register,  it  shall  appear  in  what  particular  suit, 
or  on  what  account,  the  several  items  of  money  credited  or 
charged  were  deposited  or  paid  out. 

See  H.  S.  §§6598,  6606;  34  Mich.  99. 

FORM  OF  ORDERS  FOR  PAYMENT  OF  MONEYS  OUT  OF  COURT. 

Rule  88.  Orders  upon  the  banks  for  the  payment  of  moneys 
nut  of  court  shall  be  made  payable  to  the  order  of  the  person  en- 
titled thereto,  or  of  his  solicitor  or  his  attorney,  duly  authorized, 
and  shall  specify  in  what  particular  suit,  or  on  what  account 


288  MICHIGAN    CHANCERY    RULES. 

the  money  is  to  be  paid   out,  and  the   time  when  the   decn 
order  authorizing  such  payment  was  made. 
42  Mich.  249. 

TAXING    COSTS — KETAXATION. 

Rule  80.  The  circuit  court  commissioners  and  registers  of 
each  circuit  court  shall  have  power  to  tax  costs,  and  where  costg 
have  been  taxed,  upon  hearing  of  the  parties,  an  application  for 
a  retaxalion  may  be  made  directly  to  the  court, 

See  H.  S.  §§8962,  8963,  8996,  9003,  0032,  0045:  Walk.  Ch. 
340,  72;  16  Mich.  506;  Walk.  Ch.  153. 

J5ILL   OF   COSTS  TO   SPECIFY    ITEMS — AFFIDAVIT     TO    BE    ANNEXED 
— NOTICE   OF   TAXATION — WHAT    ALLOWED. 

Rule  00.  In  a  bill  of  costs  offered  for  taxation,  by  or  on  be- 
half of  any  solicitor,  or  of  any  party  who  prosecutes  and  defends 
by  a  solicitor,  or  by  or  on  behalf  of  any  officer  of  this  court  who 
prosecutes  and  defends  in  person,  the  several  items  of  disburse- 
ments and  of  the  fees  of  officers  of  the  court,  shall  be  particularly 
specified  therein,  and  not  charged  in  gross,  or  they  shall  be  dis- 
allowed on  taxation;  and  when  witnesses'  fees  are  charged,  the 
names  of  the  witnesses  shall  be  specified,  and  the  number  of 
days'  travel  and  attendance  of  each.  The  affidavit  of  the  solici- 
tor, or  the  officer  who  prosecutes  or  defends  in  person,  shall 
alsd  be  annexed  to  the  bill  before  it  is  taxed,  stating,  according 
to  the  best  of  his  knowledge  and  belief,  that  the  several  dis- 
bursements charged  in  the  bill  have  been  actually  and  necessarily 
incurred  or  paid;  and  before  any  officer  or  party  shall  be  entitled 
to  demaud  payment  thereof,  such  costs  or  fees  shall  be  taxed  by 
a  taxing  officer  of  this  court;  but  no  officer  whatever  shall  tax 
his  own  costs  or  fees;  and  the  same  notice  of  taxation  shall  be 
given  to  the  party  to  be  charged  therewith,  if  such  party  has 
appeared  in  the  cause  or  proceedings,  as  is  required  by  the 
rules  of  this  court.  The  following  costs  shall  be  allowed  to 
the  prevailing  parties,  viz. :  In  all  cases  determined  by  final 
decree  on  pleadings  and  proofs,  thirty  dollars.  In  all  cases 
determined  by  final  decree  on  bill  and  answer,  plea  or  demurrer, 
twenty  dollars.  In  all  cases  where  decree  is  taken  on  the  bill 
taken  as  confessed,  fifteen  dollars.  Upon  all  special  motions, 
such  sum,  not  exceeding  ten  dollars,  as  the  court  shall  deem  just. 
When  a  bill  is  dismissed  for  default  at  the  hearing,  or  for  want 


MICHIGAN    CHANCERY   RULES.  -89 

of  prosecution,  or  voluntarily  by  the  complainant,  the  defendant 
shall  be  entitled  to  the  same  costs  as  if  the  cause  had  been 
heard,  and  where  the  bill  is  dismissed  upon  payment  of  the 
claim,  or  performance  of  the  relief  sought,  before  decree,  the 
complainant  shall  be  entitled  to  the  same  costs  as  if  the  case  had 
been  heard.  If  such  payment  or  performance  is  made  before 
plea,  demurrer  or  answer,  the  costs  shall  be  as  on  bill  taken  pro 
confesso;  if  after  any  pleading  is  put  in  and  before  proofs,  they 
shail  be  as  on  a  hearing  upon  pleadings;  and  if  proofs  are  taken, 
the  costs  shall  be  as  on  a  hearing  upon  pleadings  and  proofs.  In 
divorce  cases  the  costs  shall  be  under  the  direction  of  the  court. 
Where  there  are  several  defendants  entitled  to  costs,  the  costs 
granted  by  this  rule  shall  be  apportioned  among  them  as  the 
court  may  deem  proper. — As  amended  October  23,  1858. 

See  H.  S.  ^§  9001,  9002;  Walk:  Ch.  45,  72,  153;  41  Mich. 
730;  35  Mich.' 237;  1  Dousf.  41;  10  Mich.  454;  12  Mich.  61, 
117,  540;  13  Mich.  258;  14  Mich.  160;  16  Mich.  506;  24  Mich. 
39;  31  Mich.  207;  25  Mich.  127;  29  Mich.  305;  35  Mich.  96. 

HOW   RIGHTS     OF     SUBSEQUENT    PURCHASERS,    ETC.,     SET   OUT   IN 

BILL. 

Rule  91.  In  a  bill  for  foreclosure  or  satisfaction  of  a  mort- 
gage, it  shall  not  be  necessary  to  set  out  at  large  the  rights  and 
interests  of  the  several  defendants  who  are  purchasers  of,  or 
who  have  liens  on,  the  equity  of  redemption  in  the  mortgaged 
premises,  subsequent  to  the  registry  or  recording  of  complain- 
ant's mortgage,  and  who  claim  no  right  in  opposition  thereto; 
but  it  shall  be  sufficient  for  the  complainant,  after  setting  out 
his  own  right  and  interest  in  the  premises,  to  state  generally 
that  such  defendants  have  or  claim  some  interest  in  the  premises, 
as  subsequent  purchasers  or  encumbrancers,  or  otherwise. 

Walk.  Ch.  43;  36  Mich.  364;  40  Mich.  807;  Har.  Ch.  423, 
443,  449;  Walk.  Ch.  465;  6  Mich.  70;  Walk.  Ch.  64;  39  Mich. 
42;  34  Mich.  10;  35  Mich.  115;  1  Mich.  179;  3  Mich.  448; 
8  Mich.  115;  13  Mich.  409;  14  Mich.  361;  10  Mich.  453;  15 
Mich  489;  34  Mich.  221;  35  Mich.  97;  24  Mich.  39;  28 
Mich.  125;  26  Mich.  128;  27  Mich.  308;  32  Mich.  438;  33 
Mich.  354;  34  Mich.  10;  35  Mich.  99;  38  Mich.  387,  513. 
667;  43  Mich.  299;  33  Mich.  505;  40  Mich.  506;  41  Mich. 
719;  35  Mich.  134;  40  Mich.  371;  42  Mich.  304;  43  Mich. 
468;  34  Mich.  362;  34  Mich.  221;  34  Mich.  300;  35  Mich. 
115;  42  Mich.  107,  304;  35  Mich.  464;  36  Mich.  77,  173;  39 
Mich.  689;  40  Mich.  530;  See  H.  S— ;  40  Mich.  264;  40  Mich 

19 


290  MICHIGAN    CHANCERY    RULES. 

380;  41  Mich.  274;  3  Mich.  211;  9  Mich.  9;  12  Mich.  270;  13 
Mich.  308;  24  Mich.  305,  479;  26  Mich  500;  30  Mich.  149; 
■A5  Mich.  134,  229,  284;  40  Mich.  339,  610,  668;  41  Mich.  371, 
719:  42  Mich.  115,  482;  37  Mich.  473. 

REFERENCE   TO   COMPUTE    AMOUNT    DUE     ON   MORTGAGE.    ETC. — 
AFFIDAVIT   OF   REGULARITY. 

Rule  92.  If  a  bill  to  foreclose  a  mortgage  is  taken  as  con- 
fessed, or  the  right  of  the  complainant,  as  stated  in  his  bill,  is 
admitted  by  the  answer,  he  may  have  an  order  of  course,  refer- 
ring it  to  a  commissioner  to  compute  the  amount  due  to  the 
complainant,  and  to  such  of  the  defendants  as  are  prior  incum- 
brancers of  the  mortgaged  premises;  and  if  the  defendant  is  an 
infant,  and  has  put  in  a  general  answer  by  his  guardian,  or  any 
of  the  defendants  are  absentees,  the  complainant  may  have  a 
similar  order  of  course,  referring  it  to  a  commissioner  to  take 
proofs  of  the  facts  and  circumstances  stated  in  the  complainaut's 
bill,  and  to  compute  the  amount  due  on  the  mortgage,  prepara- 
tory to  the  hearing  of  the  cause.  But  every  such  cause  shall  be  • 
regularly  brought  to  hearing  at  term  after  the  coming  in  of  the 
commissioner's  report,  before  a  final  decree  is  entered  therein; 
and  if  the  bill  has  been  taken  as  confessed,  the  complainant 
shall  show  to  the  court,  at  the  hearing,  by  affidavit  or  other- 
wise, that  the  proceedings  to  take  the  bill  as  confessed  have  been 
regular,  according  to  the  rules  and  practice  of  the  court.  He 
shall  also  show  whether  the  bill  has  been  taken  as  confessed 
against  all  of  the  defendants  upon  service  of  subpoena,  or  after 
an  appearance,  or  whether  some  of  them  have  been  proceeded 
against  as  absentees.  From  and  after  January  1,  1879,  sales 
shall  not  be  ordered  on  less  than  six  full  weeks  or  forty-two 
days  notice,  and  publication  shall  not  commence  until  the  time 
fixed  by  decree  for  payment  has  expired,  nor  within  a  year  after 
commencement  of  suit. — As  amended  October  IS,  187S. 

See  H.  S.  §§  1137,  6674,  6677,  6711,  6713;  Walk.  Ch.  6; 
29  Mich.  72;  16  Mich.  162;  36  Mich.  297;  43  Mich.  208;  33 
Mich.  410;  36  Mich.  160;  Walk.  Ch.  15,  45;  12  Mich.  314; 
Walk.  Ch.  23,  478;  9  Mich.  28;  13  Mich.  552;  34  Mich.  300; 
42  Mich.  304;  11  Mich.  304;  15  Mich.  253;  21  Mich.  524;  36 
Mich.  297;  12  Mich.  215;  36  Mich.  77;  40  Mich.  1;  37  Mich. 
473;  34  Mich.  302;  34  Mich.  503;  37  Mich.  148;  39  Mich.  304; 
40  Mich.  517;  41  Mich.  264;  15  Mich.  253;  12  Mich.  314;  33 
Mich.  505;  40  Mich.  506;  40  Mich.  447;  19  Mich.  142;  36 
Mich.  285;  43  Mich.  200;  37  Mich.    81,    164;    35  Mich.  115; 


MICHIGAN    CHANCERY    RULES.  291 

42  Mich.  107,  304;  42  Mich.  154;  33  Mich.  298;  34  Mich.  13; 

34  Mich.  302;  29  Mich.  57,  153;  37  Mich.  596;  29  Mich.  72; 
30  Mich.  331;  31  Mich.  263;  32  Mich.  63;  32  Mich.  225;  32 
Mich.  515;  33  Mich.  354;  34  Mich.  10;  35  Mich.  97;  35 
Mich.  233;  33  Mich.  298;  43  Mich.  322;  38  Mich.  30,  92;  39 
Mich.  777;  40  Mich.  093;  41    Mich.    202,  025;  42  Mich.  34; 

39  Mich.  150;  13  Mich.  23;  27  Mich.  203;  27  Mich.  289;  31 
Mich.  440;  37  Mich.  47;  37  Mich.  539;  40  Mich.  581;  42 
Mich.  389;  38 Mich.  430;  41  Mich.  198;  Walk.  Ch.  185,  459; 
15  Mich.  253;  19  Mich.   142;  21   Mich.  524;    23   Mich.  312; 

35  Mich.  134;  36  Mich.  77;  38  Mich.  387  430;  41  Mich.  198; 
34  Mich.  477;  43  Mich.  129;   43   Mich.  515;  43  Mich.  208; 

40  Mich.  447;  38  Mich.  662;  41  Mich.  40;  43  Mich.  349;  43 
Mich.  549,  473. 

HOW   SURPLUS  ON   FORECLOSURE   SALE   DISPOSED   OF. 

Rule  93.  On  the  coming  in  and  confirmation  of  the  com- 
missioner's report  of  the  sale  of  mortgaged  premises,  if  it  shall 
appear  there  is  any  surplus  money  remaining  in  court  after  satis- 
fying the  amount  due  the  complainant,  any  defendaut,  upon  fil- 
ing an  affidavit  that  such  surplus  has  been  paid  into  court,  and 
that  he  is  entitled  to  the  same,  or  some  part  thereof,  may  have 
an  order  of  course,  referring  it  to  a  commissioner  to  ascertain 
and  report  the  amount  due  to  such  defendants,  or  to  any  other 
person,  and  which  is  a  lieu  upon  surplus  moneys;  and  to  ascer- 
tain the  priorities  of  the  several  liens  thereon;  to  the  end  that 
on  coming  in  and  confirmation  of  the  report,  such  further  order 
and  decree  may  be  made  for  the  distribution  of  surplus  moneys 
as  may  be  just;  and  every  defendant  who  has  appeared  in  the 
cause,  and  every  person  who  has  left  a  written  notice  of  his 
claim  to  such  surplus  moneys  with  the  register  or  assistant  reg. 
ister,  where  the  same  are  deposited,  shall  be  entitled  to  notice  to 
attend  the  commissioner  on  such  reference.  And  any  person 
making  a  claim  to  such  surplus  moneys,  and  who  shall  fail  to 
establish  his  claim  on  the  hearing  before  the  commissioner,  may 
be  charged  with  such  costs  as  the  other  parties  have  been  sub- 
jected to  by  reason  of  such  claim;  and  the  parties  succeeding 
on  such  reference  may  be  allowed  such  costs  as  by  the  court 
may  be  deemed  reasonable;  but  no  costs  unnecessarily  incurred 
on  such  reference,  or  previous  thereto,  by  any  of  the  parties, 
shall  be  allowed  on  taxation  or  paid  out  of  such  surplus. 

See  H.  S.  §§6709-6710,  10  Mich.  268;  21  Mich.    211;  19 
Mich.  244;   12    Mich.  398;  21  Mich.  211;    33   Mich.  63;   33. 


292  MICHIGAN    CHANCERY    RULES. 

Mich.  268-337;  35  Mich.  57;  36  Mich.  281;  41  Mich.  689;  36 
Mich.  287;  36  Mich.  285;  40  Mich.  264;  42  Mich.  131;  43 
Mich.  192;  17  Mich.  386;  18  Mich.  255;  13  Mich.  258. 

SECURITY  BY   GUARDIAN   AD   LITEM,  ETC. 

Rule  94.  No  guardian  ad  litem  for  an  infant  defendant,  or 
next  friend  of  an  infant  complainant,  unless  he  has  given  securi- 
ty to  the  infant  according  to  law,  shall  as  such  guardian,  receive 
any  money  or  property  belonging  to  such  infant,  or  which  may 
be  awarded  to  him  in  the  suit,  except  such  costs  and  expenses 
as  may  be  allowed  by  the  court  to  the  guardian,  out  of  the  fund, 
or  received  by  the  infant  in  the  suit.  Neither  shall  the  general 
guardian  of  an  infant  receive  any  part  of  the  proceeds  of  the  sale 
of  real  property  belonging  to  such  infant  sold  under  a  decree  or 
order  of  the  court,  until  the  guardian  has  given  such  further 
security  for  the  faithful  discharge  of  his  trust  as  the  court  may 
direct. 

Walk.  Ch.  314;  42  Mich.  69. 

BILLS  FOR  DIVORCE. 

Rule  95.  All  bills  for  the  purpose  of  obtaining  divorce, 
whether  the  husband  or  wife  is  complainant,  shall  be  duly  veri- 
fied by  oath,  in  the  usual  manner  of  verifying  bills,  where,  by 
the  course  and  practice  of  the  court,  an  oath  is  required.  In  a 
bill  for  a  divorce  on  the  ground  of  adultery,  the  complainant 
must  also  positively  aver  that  the  adultery  charged  in  the  bill 
was  committed  without  the  consent,  connivance,  privity  or  pro- 
curement of  the  complainant;  and  that  the  complainant  has  not 
voluntarily  cohabited  with  the  defendant  since  the  discovery  of 
such  adultery.  And  in  all  such  bills,  and  in  all  bills  for  divorce 
upon  any  ground,  the  complainant  shall  also  positively  aver  that 
the  act  done  or  cause  charged  in  the  bill  for  which  divorce  is 
sought,  was  committed  without  the  consent,  connivance,  privity 
or  procurement  of  the  complainant,  and  that  such  bill  is  not 
founded  on  or  exhibited  in  consequence  of  any  collusion,  agree- 
ment or  understanding  whatever  between  the  parties  thereto,  or 
between  the  complainant  and  any  other  person. 

Const.  Art.  4,  sec.  26;  Comp.  L.  1871,  ch.  170;  Walk.  Ch. 
53;  Har.  Ch.  19;  Walk.  Ch.  421 ;  6  Mich.  285;  14  Mich.  462; 
18  Mich.  458;  21  Mich.  414;  26  Mich.  417;  30  Mich.  163;  15 
Mich.  184;  12  Mich.  456;  16  Mich.  162;  17  Mich.  205,  211;  22 
Mich.  242;  24  Mich.  180;  22  Mich.  299;    26  Mich.    417;  30 


MICHIGAN   CHANCERY    RULES.  293 

Mich.  163;  35  Mich.  138;  37  Mich.  003;  40  Mich.  232, 
495;  39  Mich.  07,  719;  40  Mich.  63;  35  Mich.  138;  39  Mich. 
221;  39  Mich.  661;  40  Mich.  232;  35  Mich.  138;  40  Mich. 
527,  528,  232;  42  Mich.  53;  43  Mich.  287;  40  Mich.  493;  40 
Mich.  633;  3  Mich.  67;  20  Mich.  34;  26  Mich.  437:  13  Mich. 
452;  17  Mich.  205;  33  Mich.  201;  18  Mich.  420;  35  Mich.  461; 
17  Mich.  205,  211;  20  Mich.  34;  24  Mich.  482;  26  Mich.  417; 
40  Mich.  493;  34  Mich  519;  16  Mich,  140;  35  Mich.  210;  11 
Mich.  284;  20  Mich.  222;  24  Mich.  482;  31  Mich.  194,  298; 
26  Mich.  437;  17  Mich.  211;  36  Mich.  386;  25  Mich.  247;  24 
Mich.  180;  22  Mich.  242. 

REFERENCE   TO   TAKE   PROOFS   IN   DIVORCE   CASES. 

Rule  96.  If  any  such  bill  is  taken  as  confessed,  or  the  facts 
charged  therein  are  admitted  by  the  answer,  the  complainant 
may,  upon  due  proof  by  affidavit  of  the  regularity  of  the  pro- 
ceedings to  take  the  bill  as  confessed,  or  upon  the  bill  and 
answer,  have  an  order  of  course  entered  for  a  reference  to  a  com- 
missioner, to  take  proof  of  all  the  material  facts  charged  in  the 
bill,  and  to  report  such  proof  to  the  court,  with  his  opinion 
thereon.  And  on  such  reference  it  shall  be  the  duty  of  the  com- 
missioner, in  addition  to  any  questions  put  by  the  parties,  to 
make  such  full  inquiries  of  the  persons  sworn  as  shall  be  neces- 
sary to  arrive  at  all  the  material  facts  of  the  case. 

Walk.  Ch.  532;  28  Mich.  344;  31  Mich.  298;  17  Mich. 
211;  31  Mich.  298;  29  Mich.  305;  24  Mich.  482;  20  Mich.  34; 
24  Mich.  482;  26  Mich.  417;  33  Mich.  101. 

DEFENCE   OF   ADULTRY,  ETC  ,  IN   DIVORCE   CASES. 

Rule  97.  The  defendant  in  the  answer  may  set  up  the  adul- 
tery of  the  complainant,  or  any  other  matter  which  would  be  a 
bar  to  a  divorce,  separation,  or  the  annulling  of  the  marriage 
contract;  and  if  an  issue  is  taken  thereon,  it  shall  be  tried  at  the 
same  time  and  in  the  same  manner  as  other  issues  of  fact  in  the 
cause. 

5  Mich.  395;  6  Mich.  285. 

DECREE   FOR   DIVORCE,    ETC.,    NOT   TO    GE   ENTERED   BY  CONSENT 
OR  DEFAULT. 

Rule  98.  No  sentence  or  decree  of  nullity,  declaring  void  a 
marriage  contract,  or  decree  for  a  divorce,  or  for  a  separate  or 
limited  divorce,  shall  be  made  of  course,  by  the  default  of  the 
defendant;  or  in  eon -sequence  of  any  neglect  to  appear  at  the 
hearing  of  the  cause,  or  by  consent.     And  every  such  case  shall 


294  MICHIGAN    CHANCERY    RULES. 

be  heard  after  the  trial  of  the  issue,  or  upon  the  coming  in  of  the 
commissioner's  report,  at  a  stated  term  of  the  court. 

Walk.  Ch.  48,  309;  16  Mich.  79;  13  Mich.  452:  18  Mich. 
335;  12  Mich.  456;  24  Mich.  176;  36  Mich.  37;  37  Mich.  59; 
10  Mich.  425;  39  Mich.  64. 

PARTIES    TO    CAUSES,     AND    WITNESSES,    MAY    BE    EXAMINED    BY 
COURT   ORALLY. 

Rule  99.  In  all  chancery  cases  whatever,  whether  for  divorce 
or  otherwise,  which  are  at  issue  on  pleadings  and  proofs,  the 
court  may  call  upon  the  parties  thereto,  or  any  of  them,  or  any 
witnesses  thereto,  to  testify  orally  in  open  court;  and  in  all  cases 
of  divorce,  whether  at  issue  or  standing  on  the  bill  taken  as  con- 
fessed, the  court  may  in  like  manner  call  upon  the  complainant, 
or  any  witness  thereto,  so  to  testify;  and  may  make  all  necessary 
orders  to  secure  the  attendance  of  such  party  or  -witness,  and 
may  suspend  the  hearing  of  the  cause  from  time  to  time,  as  often 
as  may  be  necessary  to  secure  such  attendance;  or  in  case  of  the 
neglect  or  refusal  of  the  complainant  to  attend  and  testify,  may 
dismiss  the  bill  in  the  same  manner  as  though  said  complain- 
ant had  made  default  at  the  hearing. 
37  Mich.  603. 

PAYMENT   OF   INTERLOCUTORY   COSTS — HOW   COMPELLED. 

Rule  100.  When  a  party  is  ordered  to  pay  the  costs  of  any 
interlocutory  proceedings,  and  no  time  of  payment  is  specified 
in  the  order,  he  shall  pay  them  within  twenty  days  after  the  filing 
of  the  taxed  bill  and  affidavit,  and  service  of  a  copy  of  the 
order  and  of  such  taxed  bill;  or  if  a  gross  sum  is  specified  in  the 
order,  within  twenty  days  of  service  of  a  certified  copy  of  the 
order.  And  if  he  neglects  or  refuses  to  pay  such  costs  within 
the  time  prescribed  as  aforesaid,  or  specified  in  the  order,  the 
adverse  party,  on  an  affidavit  of  the  personal  service  of  such 
copies,  and  a  demand  of  payment,  and  that  such  costs  have  not 
been  paid,  may  have  an  execution  therefor,  or  move  for  an  at- 
tachment against  the  delinquent. 

Har.  Ch.  19;  35  Mich.  138;  22  Mich.  299;  See  H.  S. 
§§6235,  6653,  7257. 

BILL   OF   REVIEW. 

Rule  101.  On  filing  a  bill  of  review,  or  other  bill  in  the 
nature  of  a  bill  of  review,  the  complainant  shall    make  the  like 


MICHIGAN    CHANCERY    EULE8.  295 

deposit,  or  give  security  to  the  adverse  party  in  the  same  amount 
which  is  or  would  be  required  on  an  appeal  from  an  order  or  de- 
cree complained  of ;  and  no  such  bill  shall  be  liled,  either  upon 
the  discovery  of  new  matters,  or  otherwise,  without  special  leave 
of  the  court  first  obtained,  nor  unless  the  same  is  brought  within 
the  time  allowed  for  bringing  au  appeal,  excapt  upon  newly 
discovered  facts  or  evidence,  unless  upon  reasons  satisfactory  to 
the  court. 

18  Mich.  490;  23  Mich.  537;  25  Mich.  527;  30  Mich.  160; 
35  Mich.  115;  40  Mich.  166;  39  Mich.  64;  35  Mich.  115;  39 
Mich.  98:  40  Mich.  307:  42  Mich.  107;  42  Mich  304;  52  Mich. 
489;  45  Mich.  394;  63  Mich.  215;  48  Mich.  375. 

CREDITOR'S  BILL — WHAT  TO   STATE. 

Rulio  102.  AVhere  a  creditor,  b}f  judgment  or  decree,  files  a 
bill  iu  this  court  against  his  debtor  to  obtain  satisfaction  out  of 
the  equitable  interests,  things  in  action,  or  other  property  of  the 
latter,  after  the  retura  of  an  execution  unsatisfied,  he  shall  state 
in  such  bill,  either  positively  or  according  to  his  belief,  the  true 
sum  actually  and  equitably  due  on  such  judgment  or  decree, 
over  and  above  all  just  claims  of  the  defendant,  by  way  of  off- 
set or  otherwise.  He  shall  also  state  that  he  knows,  or  has  reason 
to  believe,  thedefendaut  has  equitable  interests,  things  in  action, 
or  other  property,  exceeding  one  hundred  dollars  in  value,  exclu- 
sive of  all  prior  claims  thereon,  which  the  complainant  has  been 
unable  to  discover  and  reach  by  execution  on  such  judgment  or 
decree.  The  bill  shall  likewise  contain  an  allegation  that  the 
same  is  not  exhibited  by  collusion  with  the  defendant,  or  for  the 
purpose  of  protecting  the  property  or  effects  of  the  debtor 
against  the  claims  of  other  creditors;  but  for  the  sole  purpose  of 
compelling  payment  and  satisfaction  of  the  complainant's  own 
debt. 

•  Walk.  Ch.  1,  28,  62,  143.  317,  353,  495;  Har.  Ch.  162,  169, 

327,  430,  435;  38  Mich.    578;  43  Mich.  269;  liar.  Ch.    227; 

Walk.  Ch.  28,  495;  Har.  Ch.  430;  1  Mich.  213,  321;  26  Mich. 

383,  500;  33  Mich.  268;  7  Mich.  334;  9   Mich.    358,    485;  30 

Mich.    63;  40  Mich.  636,    24;  43   Mich.  309;  Har.    Ch.  169; 

Walk.  Ch.  62;  1  Mich.  213,  321;  9  Mich.  358.  485;  17  Mich. 

128;  30  Mich.  63;  3  Mich.    201;  Walk.   Ch.   1,  495.  28,  143, 

317:  Har.    Ch.   169,   430,  435;  1   Mich.  446;    Har.   Ch.    162; 

Walk.  Ch.  353,  5.  115,  391.  465.  495;  Har.  Ch.  227,  443,  449; 

1  Dous?.  351;  1  Mich.  118,  512,  44ti;  6  Mich.  441:  31  Mich.  76; 

33  Mich.  257;  27  Mich.  76;  41  Mich.  503;  29   Mich.  526;  32 


296  MICHIGAN   CHANCERY    RULES. 

Mich.  88;  51  Mich.  148;  55  Mich.  39;  52  Mich.  8;  45  Mich. 
554;  63  Mich.  250;  German  American  Seminary  v.  Sawyer, 
66  Mich.  (June,  1887);  55  Mich.  387;  40  Mich.  689,  399;  9 
Mich.  358,  485. 

creditor's  bill  to  be  verified— amendment  of. 
Rule  103.  Every  such  creditor's  bill  shall  be  verified  by  the 
oath  of  the  complainant,  or  in  case  of  his  absence  from  the  state, 
or  other  sufficient  cause  shown,  by  the  oath  of  his  agent  or  attor- 
ney. Such  bills  may  be  amended  of  course,  in  the  same  manner 
as  bills  not  sworn  to,  if  the  amendments  are  merely  in  addition 
to  and  not  inconsistent  with  what  is  contained  in  the  original  bill. 
But  all  such  amendments  shall  be  verified  by  oath,  in  the  same 
manner  as  the  bill  is  required  to  be  verified. 
Walk.  Ch.  5. 

CREDITORS  MAY   PROCEED   EX  PARTE   WHEN   DEFENDANT   IN   DE- 
FAULT. 

Rule  104.  In  suit  by  judgment  creditor's  bill,  incase  the  de 
fendant  has  been  duly  served  with  process,  and  he  is  in  default 
for  want  of  answer,  the  complainant  shall  be  entitled  to  the  like 
orders  and  proceedings  in  regard  to  receivers  as  he  would  be  in 
case  he  should  take  the  bill  as  confessed  by  the  defendant. 
SeeH.  S.  §§6624,  6625. 

DEBTOR  MAY  OONSENT  THAT  BILL  BR  TAKEN  AS  CONFESSED — 
ORDER  THEREON — COPY  OF  RULE  TO  BE  SERVED  WHEN 
ANSWER   REQUIRED. 

Rule  105.  The  debtor  against  whom  a  creditor's  bill  is  filed 
shall  not  be  subject  to  the  expense  of  putting  in  an  answer  there- 
to in  the  usual  manner,  if  he  shall  cause  his  appearance  to  be 
entered  within  twenty  days  after  the  return  day  of  the  subpoena, 
and  shall,  within  the  time  allowed  for  an  answer,  deliver  to  the 
complainant  or  his  solicitor  a  written  consent  that  an  order  may 
be  eutered  taking  the  bill  as  confessed,  and  for  the  appointment 
of  a  receiver,  and  for  a  reference  to  take  the  examination  of  the 
defendant,  in  conformity  to  this  rule.  Upon  presenting  such 
written  consent  to  the  court,  the  complainant  may  have  a  special 
order,  founded  thereon,  directing  the  bill  to  be  taken  as  con- 
fessed a^aiasl  th  ■  debtor,  and  referring  it  to  such  commissioner 
as  the  court  m  ly  designate  in  'such  order,  to  appoint  a  receiver 
with  the  usual  powers,  and  to  take  from  him  the  requisite  secu- 


MICHIGAN    CHANCERY    RULES.  297 

rity.  The  order  shall  also  direct  the  defendant  to  assign,  transfer 
and  deliver  over  to  the  receiver  on  oath,  under  the  direction  of 
the  commissioner,  all  his  property,  equitable  interests,  and  in 
action,  and  effects;  and  thai  he  appear  before  the  commissioner, 
from  time  to  time,  and  produce  such  books  and  papers,  and  sub- 
mit to  such  examination  as  the  commissioner  shall  direct,  in 
relation  to  any  matter  which  he  might  have  been  legally  required 
to  disclose  if  he  had  answered  the  bill  in  the  usual  manner.  The 
expeuse  of  taking  down  such  examination  by  the  commissioner 
shall  be  paid  by  the  complainant  in  the  first  instance,  and  maybe 
taxed  and  allowed  to  the  latter  as  a  part  of  his  necessary  costs  in 
the  suit.  The  complainant  shall  also  be  at  liberty  to  examine 
witnesses  before  the  commissioner,  as  to  the  property  of  the  de- 
fendant, or  as  to  any  other  matter  charged  in  the  bill  and  not 
admitted  b}r  the  defendant  on  such  examination.  And  the  com- 
plainant shall  cause  a  written  or  printed  copy  of  this  rule  to  be 
served  on  the  defendant  at  the  time  of  the  service  of  the  subpoena, 
with  a  notice  to  the  defendant  that  an  entry  of  his  appearance 
and  answer  on  oath  is  required;  or  such  defendant  shaii  not  be 
answerable  to  the  complainant  for  the  costs  of  the  proceedings 
to  compel  an  appearance  and  answer. 
Walk.  Ch.  353,  391,  465. 

RECEIVERS   IN  CREDITOR'S  SUITS,  AND   THEIR  POWERS, 

Rule  106.  Every  receiver  of  the  property  and  effects  of  the 
debtor,  appointed  in  a  suit  upon  a  creditor's  bill,  shall,  unless 
restricted  by  the  special  order  of  the  court  or  circuit  court  com- 
missioner, have  general  power  and  authority  to  sue  for  and  col- 
lect all  the  debts,  demands  aud  rents  belonging  to  such  debtor, 
and  to  compromise  and  settle  such  as  are  unsafe  and  of  a  doubt- 
ful character.  He  may  also  sue  in  the  name  of  the  debtor,  where 
it  is  necessary  or  proper  for  him  to  do  so,  and  he  may  apply  for 
and  obtain  an  order  of  course  that  the  tenants  of  any  real  estate 
belonging  to  the  debtor,  or  of  which  he  is  entitled  to  the  rents 
aud  profits,  attorn  to  such  receiver  and  pay  their  rents  to  him. 
He  shall  also  be  permitted  to  make  leases  from  time  to  time  as 
may  be  necessary,  for  terms  not  exceeding  one  year.  Aud  it 
shall  be  his  duty,  without  unreasonable  delay,  to  convert  all  the 
personal  estate  and  effects  into  money;  but  he  shall  not  sell  any 
real  estate  of  the  debtor  without  the  special  order  of  the  court. 


298  MICHIGAN    CHANCERY    KULES. 

He  is  not  to  be  allowed  for  the  costs  of  any  suit  brought  by  him 
against  an  insolvent  from  whom  he  is  unable  to  collect  his  costs, 
unless  such  suit  is  brought  by  order  of  the  court,  or  by  the 
consent  of  all  persons  interested  in  the  funds  in  his  hands.  But 
he  may  sell  such  desperate  debts,  and  all  other  doubtful  claims 
to  personal  property,  at  public  auction,  giving  at  least  ten  days' 
notice  of  the  time  and  place  of  such  sale. 

RECEIVER  FOR     SEVERAL    SUITS — SECURITY    TO   BE   GIVEN — HOW 
TO   PAY   OVER   MONEYS. 

Rule  107.  Where  several  bills  are  filed  by  different  creditors 
against  the  same  debtor,  no  more  than  one  receiver  of  his 
property  and  effects  shall  be  appointed,  unless  the  first  appoint- 
ment has  been  obtaiued  by  fraud  or  collusion,  or  unless  the 
receiver  is  an  improper  person  to  execute  the  trust.  The 
receiver  shall  give  security  .sufficient  to  cover  the  whole  property 
and  effects  of  the  debtor,  which  may  come  in  his  hands  by 
virtue  of  his  office;  and  he  shall  hold  such  property  and  effects 
for  the  benefit  of  all  creditors  who  have  commenced,  or  shall 
commence,  similar  suits,  during  the  continuance  of  his  trust,  to 
be  disposed  of  according  to  their  legal  or  equitable  priorities. 
He  shall  not  pay  over  the  funds  in  his  hands  to  the  parties, 
or  to  any  other  person,  without  being  especially  authorized  to 
do  so  by  an  order  or  decree  of  the  court;  nor  shall  he  be  dis- 
charged from  his  trust  without  a  special  order,  to  be  obtaiued 
upon  a  written  consent  of  all  the  parties  interested  in  the  prop- 
erty in  his  hands,  or  upon  notice  of  the  application. 

RECEIVER  FOR   SUBSEQUENT   SUITS.      RECEIVER'S    ACCOUNTS. 

Rule  108.  When  another  suit  is  commenced  after  the  ap- 
pointment of  a  receiver,  the  same  person  may  be  appointed 
receiver  of  such  subsequent  suit,  and  shall  give  such  further 
security  as  the  court  shall  direct.  He  shall  keep  a  separate 
account  of  any  property  or  effects  of  the  debtor,  which  may 
have  been  acquired  since  the  commencement  of  the  first  suit,  or 
which  may  be  assigned  to  such  receiver  under  the  appoiutment 
in  the  last  cause. 

EFFECT   OF   INJUNCTION    UPON   CREDITOR'S  BILLS. 

Rule  109.  No  injunction  issued  upon  any  such  creditor's 
bill  shall  be  construed  to  prevent  the  debtor  from  receiving 
and  applying  the  proceeds  of  his  subsequent  earnings  to  the  sup- 


MICHIGAN    CHANCERY    RULES.  299 

port  of  himself,  or  of  his  family,  or  to  defray  the  expenses  of 
the  suit,  or  to  prevent  him  from  complying  with  any  order  of 
this  court,  made  in  auy  other  cause,  to  assign  and  deliver  his 
property  and  effects  to  a  receiver;  or  to  restrain  him  from  mak- 
ing the  necessary  assignment  to  obtain  his  discharge  under  the 
insolvent  laws,  unless  an  express  provision  to  that  effect  is  con- 
tained in  the  injunction. 

ORDERS  ON   TWO    OK    MORE     SPECIAL     MOTIONS     AT   SAME   TIME: 
HOW  ENTERED. 

Rule  110.  When  two  or  more  special  motions  or  applica- 
tions in  the  same  suit  are  decided  at  the  same  time,  or  on  the 
same  day,  or  several  directions  are  given  by  the  court  in  rela- 
tion to  the  suit,  the  whole  shall  be  entered  together  as  one  order, 
unless  the  court  shall  otherwise  direct  And  when  a  party  is 
entitled  to  enter  two  or  more  orders  of  course  in  a  suit  at  the 
same  time,  or  on  the  same  day,  they  shall  be  entered  together 
as  one  order. 

POWERS  OF   CIRCUIT   COURT   COMMISSIONERS. 

Rule  111.  Under  the  "Act  to  provide  for  the  discharge  of 
the  duties  heretofore  performed  by  Injunction  Masters,"  ap- 
proved June  27th,  1851  (8.  L.  1851,  p.  277),  the  circuit  court 
commissioners  designated  in  pursuance  thereof  shall  have  the 
same  power  in  chancery  cases  within  their  respective  counties 
as  may  be  properly  exercised  by  a  circuit  judge  at  chambers, 
subject  to  such  restrictions  and  regulations  as  the  supreme 
court  may  prescribe. 

Const.  Art.  6,  sec.  16;  Walk,  Ch.  453,  459;  17  Mich.  411. 

Rule  112.  The  general  powers  conferred  by  said  act  are 
hereby  restricted  in  the  following  particulars: 

1.  No  such  circuit  court  commissioner  shall  be  empowered 
to  vacate  any  order  or  decree  of  the  circuit  court,  or  any  order 
made  by  a  circuit  judge. 

2.  Nor  shall  he  grant  any  injunction  to  stay  proceedings  at 
law,  unless  reasonable  notice  of  the  time  and  place  of  hearing 
the  application  therefor  shall  have  been  previously  given  to  the 
adverse  party. 

3.  Nor  shall  he  grant  any  injunction  without  such  notice  in  any 
case  unless  the  judge  of  the  circuit  court  iu  which  the  application 
is  made  shall  be  absent  from  the  county  at  the  time  of  such  ap- 


300  MICHIGAN    CHANCERY    RULES. 

plication  or  is  disqualified  from  granting  an  injunction  in  the 
cause,  nor  unless  in  the  opinion  of  such  commissioner  the  pecu- 
liar exigencies  of  the  case  require  it  for  manifest  reasons  to  be 
shown  by  the  affidavit  of  the  facts  and  circumstances. 

4.  Nor  shall  he  grant  any  injunction  restraining  the  execu- 
tion or  performance  of  any  public  improvement,  nor  to  compel 
a  defendant  to  refrain  from  doing  any  act  where  the  injunction 
will  necessarily  produce  great  and  irreparable  injury  to  the  de- 
fendant, if  the  claim  of  the  complainant  is  not  sustained.  Nor 
shall  he  grant  any  injunction  in  any  case  where  no  special  pro- 
vision is  made  by  law  as  to  security;  except  where  the  injunc- 
tion prayed  for  is  against  a  judgment  debtor  who  is  made 
defendant  in  a  creditor's  bill,  unless  the  officer  granting  the 
same  shall  take  from  tbe  complainant  or  his  agent  a  bond  to 
the  party  enjoined,  in  such  sum  as  shall  be  deemed  sufficient  and 
in  not  less  than  Ave  huudred  dollars,  with  sufficient  surety  or 
sureties  to  be  approved  of  by  the  officer  allowing  the  injunction, 
conditioned  to  pay  the  party  enjoined  such  damages  as  he  may 
sustain  by  reason  of  the  injunction  if  the  court  shall  eventually 
decide  that  the  complainant  was  not  equitably  entitled  to  such 
injunction,  such  damages  to  be  ascertained  by  a  reference  to  a 
circuit  court  commissioner,  or  by  the  court  having  jurisdiction 
of  the  cause  in  wliich  the  injunction  issued,  as  such  court  shall 
direct. 

Such  officer  allowing  the  injunction  shall,  before  the  register 
shall  issue  the  writ,  file  such  bond  with  such  register  in  chan- 
cery, who  shall  carefully  preserve  the  same  for  the  benefit  of  the 
obligee  therein  named.  -  (Ordered  to  take  effect  June  1st,  1886). 
As  amended  April  7,  18S6. 
17  Mich.  411. 

PRACTICE   BEFORE   COMMISSIONERS. 

Rule  113.  The  rules  and  practice  of  the  circuit  courts  in 
chancery  shall  govern  the  proceedings  before  such  circuit  court 
commissioners,  as  far  as  they  may  be  applicable. 

commissioner's  register  op  proceedings. 

Rule  114.     It  shall  be  the  duty  of  every  such  circuit  court 

commissioner  to  procure  and  keep  in  his  office  a  register,  which 

shall  be  delivered  over  to  his  successor  in  office,  in  which  he  shall 

enter  the  title  of  each  cause   or   proceeding  in  which  he  shall 


MICHIGAN    CHANCERY    KULES.  301 

make  any  order,  and  a  complete  memorandum  of  his  doings 
therein.  And  every  commissioner  shall  file  with  the  register  of 
the  court  all  orders  made  by  him,  together  with  all  papers  on 
which  the  same  are  based,  immediately  upon  the  making  of  such 
order. 

APPEAL   FROM   ORDER   OF    COMMISSIONER. 

Rule  115.  Any  person  conceiving  himself  aggrieved  by  any 
order  made  by  any  such  circuit  court  commissioner,  in  any 
suit  in  chancery,  may  appeal  therefrom  to  the  circuit  court  of 
the  county  in  which  such  suit  is  pending:  Provided  (1)  That 
such  appeal  shall  be  claimed  and  entered  within  fifteen  days 
from  the  time  of  making  such  order;  and  (3)  That  the  appellant 
shall,  within  that  time,  execute  a  bond  to  the  appellee  in  such 
penal  sum,  not  less  than  one  hundred  dollars,  as  the  commis- 
sioner shall  prescribe,  with  sufficient  security,  to  be  approved  by 
the  commissioner,  conditioned  to  pay,  satisfy  and  perform  the 
order  which  by  the  circuit  court  may  be  made  in  the  premises, 
and  to  pay  all  costs  in  case  the  order  appealed  from  shall  be 
affirmed.  But  no  such  appeal  shall  operate  as  a  stay  of  proceed- 
ings, unless  a  special  order  to  that  effect  shall  be  made  by  the 
circuit  judge  or  by  such  circuit  court  commissioner,  on  proper 
cause  shown. 

BOND   ON   APPEAL. 

Rule  116.  The  appeal  bond  mentioned  in  the  preceding  rule 
shall  be  filed  with  the  circuit  court  commissioner  approving  the 
same,  and  shall  be  returned  with  the  appeal  papers. 

-PROCEEDINGS   TO   PERFECT   APPEAL. 

Rule  117.  It  shall  be  the  duty  of  the  appellant  under  these 
rules  to  file  with  the  circuit  court  commissioner,  within  the  time 
above  limited  for  claiming  and  entering  his  appeal,  his  reasons 
for  such  appeal.  Whereupon  it  shall  be  the  duty  of  such  com- 
missioner, within  twenty  days  thereafter,  to  transmit  to  the  clerk 
of  the  circuit  court  said  bond  and  all  papers  upon  which  the 
motion  or  proceeding  may  have  been  founded,  or  which  may 
have  been  used  on  such  motion  or  proceeding,  unless  already  so 
filed,  certified  by  him,  or  in  case  the  original  pleadings  or  files 
shall  have  been  used,  he  shall  certify  such  fact  to  the  court,  with 
a  description  of  the  original  papers  so  used. 


302  MICHIGAN    CHANCERY    RULES. 

FEES   OF   COMMISSIONERS. 

Rule  118.  Such  circuit  court  commissioners  shall  be  entitled 
to  the  following  fees  for  their  services,  to  be  paid  by  the  party 
requiring  such  services,  on  the  performance  of  the  same,  viz: 

For  entering  any  cause  on  the  register  required  to  be  kept  by 
such  commissioner,  fifty  cents. 

For  hearing  a  motion  for  injunction,  when  opposed,  three 
dollars;  when  heard  ex  parte,  one  dollar. 

For  attending  at  the  time  and  place  assigned  for  the  hearing 
of  any  special  motion,  and  adjourning  the  same  upon  request  or 
on  reasonable  cause,  one  dollar. 

For  attending  and  hearing  every  argument,  upon  any  special 
motion,  when  contested,  three  dollars;  if  not  contested,  one 
dollar. 

For  certifying  papers,  when  an  appeal  is  claimed  from  the  cir- 
cuit court  commissioner,  to  the  circuit  court,  two  dollars. 

For  approving  and  filing  appeal  bond,  fifty  cents. 

For  granting  stay  of  proceedings  when  an  appeal  is  taken,  fifty 
cents. 

For  allowing  a  commission  to  take  testimony  in  a  cause,  fifty 
cents.  For  settling  and  allowing  interrogatories  under  a  com- 
mission, one  dollar. 

For  appointing  a  receiver,  when  the  question  is  contested, 
three  dollars  and  fifty  cents;  when  ex  parte,  one.  dollar  and  fifty 
cents. 

If  any  commissioner  shall  perform  any  other  duties  than  those 
enumerated  in  the  above  fee  bill,  he  shall  be  entitled  to  such  fees 
therefor  as  shall  be  allowed  him  by  the  circuit  judge. 

GENERAL  PRACTICE  OF  COURT. 

Rule  119.  In  cases  where  no  provision  is  made  by  the  statute, 
or  by  these  rules,  the  proceedings  of  this  court  shall  be  according 
to  the  customary  practice,  as  it  has  heretofore  existed  in  cases 
not  provided  for  by  statute  or  the  written  rules  of  the  court. 

WHEN   RULES  TO   TAKE   EFFECT. 

Rule  120.  These  rules  shall  take  effect  from  and  after  the 
fifteenth  day  of  June,  1858. 


MICHIGAN   CHANCERY    RULES.  303 

PROOFS   IN   PARTITION   SUITS. 

Kule  121.  In  all  cases  where  a  suit  is  brought  for  a  partition 
of  lands,  if  any  defendant  is  an  infant  and  has  answered  gener- 
ally, the  complainant  may  at  any  time  thereafter,  before  hearing, 
enter  an  order  of  course  for  a  reference  to  take  proofs  of  all 
material  facts  of  the  case,  and  of  the  title  of  the  complainant ; 
and,  on  such  reference,  he  shall  exhibit  before  the  commissioner 
proof  of  his  title  and  of  all  other  material  facts,  and  a  complete 
abstract  of  all  the  conveyances  and  incumbrances;  all  of  which 
proofs  and  abstracts  shall  be  reported  to  the  court.  And  no  de- 
cree shall,  in  such  or  any  other  case,  be  rendered  against  an 
infant,  in  partition,  until  the  court  if  fully  satisfied  concerning 
the  facts  and  circumstances  of  the  case;  and  the  court  may  at 
any  time  order  such  reference,  or  further  references,  as  justice 
may  require  for  the  complete  information  of  the  court.  And 
the  proofs  shall  in  all  cases  be  returned  to  the  court  for  its  action 
thereon. — Adopted  July  17,  1863. 

Har.  Ch.  247;  19  Mich.  116;  12  Mich.  540;  25  Mich.  53;  30 
Mich.  38;  28  Mich.  12;  28  Mich.  521;  25  Mich.  381;  29  Mich. 
122;  Walk.  Ch.  200;  21  Mich.  524;  8  Mich.  263;  21  Mich. 
438;  22  Mich.  77;  25  Mich.  175;' 28  Mich.  163;  43  Mich.  171. 

FORM  OF   SUBPCKNA — UNDERWRITING— PRINTED   FORM. 

Rule  122.  To  remove  the  danger  of  mistake  among  defend- 
ants ignorant  of  the  meaning  of  the  command  of  a  subpoena,  it 
shall  be  necessary,  after  the  first  day  of  January,  1880,  and  per- 
mitted and  recommended  until  then,  that  the  body  of  the  sub- 
poena, instead  of  requiring  personal  appearance  under  a  pecun- 
iary penalty,  shall  contain  a  notice  of  the  filing  of  the  bill,  and 
of  the  time  when  appearance  may  be  entered  on  penalty  of  de- 
fault; and  there  shall  be  underwritten  a  notice  designating  against 
what  defendants  a  personal  decree  is  asked. 

Such  subpoena  shall  be  in  substantial  compliance  with  the  form 
hereto  appended. 

Printed  forms  must  be  clearly  and  legibly  printed  on  durable 
paper,  and  such  subpoena  and  underwriting  must  be  on  a  page 
of  full  letter  size,  and  the  heading  and  place  of  endorsement 
deep  enough  not  to  be  obscured  by  enrollment. — Adopted  April 
22;  1S79. 


304  MICHIGAN    CHANCERY    RULES. 

Form  op  Subposna. 
STATE  OF  MICHIGAN— The  Circuit  Court  ~\ 

for  the  County  op ,  >  To-wil: 

In  Chancery.      ) 
In  the  name  of  The  People  of  the  State  of  Michigan: 

To 

[seal.]  Greeting: 

You  are  hereby  notified  that  a  bill  of  complaint  has  been  filed 

against  you  in  the  Circuit  Court  for  the  County  of  , 

in  Chancery,  by ,  as  complainants. ., 

and  that  if  you  desire  to  defend  the  same  you  are  required  to 
have  your  appearance  entered  with  the  Register  of  said  court, 

at  his  office  in  the ,  of in   person  or  by 

solicitor,  within  twenty  days  after  the day  of 

in  the  year  18. . . .,  which  is  the  return  day  of  this  writ.  Hereof 
fail  not,  under  the  penalty  of  having  said  bill  taken  as  confessed 
against  you. 

Witness  the  Honorable Circuit  Judge,  at. .    

this day  of in  the  year  of  our  Lord  one  thous- 
and eight  hundred  and 


Register. 


Solicitor  for  Complainant. 
Underwriting:    A  personal  decree  is  sought   against  the  de- 
fendants  ,  and  the  bill  is  filed  to  reach 

interests    in    property,  and    not    to  obtain    any    further  relief 
against  the  remainder  of  the  defendants. 


Solicitor  for  Complainant. 

63  Mich.  215. 
Rule  123.  In  any  case  in  equity  where  a  defendant  shall 
claim  from  the  complainant  any  relief  which,  according  to  the 
established  course  and  practice  of  courts  of  chancery,  might  be 
had  by  cross  bill,  such  defendant  shall  be  at  liberty  by  his  answer 
to  present  the  facts  upon  which  his  equity  rests,  and  to  claim  by 
such  answer  the  benefit  of  a  cross-bill,  and  the  court  shall  have 
power  to  give  relief  upon  such  answer  to  the  same  extent  that  it 
might  have  given  it  had  a  cross  bill  been  filed.  But  if  the  cause 
be  such  that,  if  a  cross-bill  had  been  filed,  the  practice  of  the 
court  would  have  required  it  to  be  sworn  to,  the  answer  claiming 
such  relief  shall  be  under  oath,  notwithstanding  an  oath  thereto 
may  be  waived  by  the  bill. — Adopted  March  6,  I8S4. 

60  Mich.  591;  McGuire  v.  Burk,  69  Mich.  (April  24,  1888); 
54  Mich.  634;  48  Mich.  539. 


INDEX  TO  MICHIGAN  CHANCERY  RULES. 


Abandonment,  Rule 

of  exceptions  for  insufficiency.. 28,  29 
of  exceptions  for  scandals,  etc.. 30,  31 

Absent  Defendants, 

proceedings  against -16 

Absolute, 
when  report  on  exceptions  be- 
comes        33 

when  order  of  confirmation  be- 
comes        79 

Abstract, 

of  pleadings,  etc 65 

of  title,  in  partition  suits 121 

Accounting, 
before  commissioner 77 

Accounts, 

kept  by  register,  deposits 87 

kept  by  receiver,  separate 108 

Address, 
of  petitions  and  bills 4 

Adjournment, 
of  hearing  motions,  etc 5 

Admission, 
if  answer  not  replied  to 18 

Adultery, 

bill  for  divorce  for 95 

defence  to  divorce  bill 97 

Affidavits, 
to  obtain  an  attachment  when 

a  discovery  is  prayed  for 12 

of  non-service  of  bill 14 

of  publication  and  non-appear- 
ance, absent  defendants 16 

to  obtain  testimony  of  defend- 
ant       55 

of  merits,  in  mortgage  cases..       63 

of  facts  for  a  rehearing 81 

to  be  annexed  to  costs  to  be 

taxed 90 

of  regularity 92 

to  obtain  surplus  on  sale H3 

of  regularity  in  divorce  cases..      96 
for  injunction 112 

Agents, 
to  be  appointed  by  solicitors..        1 
to    be    solicitors,    register    or 

deputy 1 

when  service  may  be  on 2 

double  time  of  service  on 3 

of  complainant,  may  swear  to 

bill  when  7 

when  to  verify  creditor's  bill . .     103 

Agreements, 
between  parties,  to  be  in  writ- 
ing       84 

to  be  denied  in  divorce  bill 95 

20 


Alias,  Rule 

process  may  be  issued 9 

Allowance, 
of  interrogatories  to  annex  to 

commission 50 

Amendments, 

to  bill,  when  allowed 21 

to  be  of  course,  without  order..      21 
not  to  be  of  course  to  injunc- 
tion bills 21,  23 

service  of,  necessary  " 21 

to  sworn  bill,  how  verified 21 

statement  of,  to  be  filed 21 

after  demurrer 22 

after    exceptions    allowed     or 

submitted  to 23 

after  plea  or    demurrer    over- 
ruled       23 

to  creditor's  bill 103 

Answer, 

how  to  be  verified 8 

to  be  put  in  within  twenty  days,      11 
to  be  put  in  instanter  atter  at- 
tachment        13 

exceptions  to 17 

effect  of,  when  not  replied  to. .       18 

on  oath,  how  waived 18 

before    whom    they   may    be 

sworn 19 

taken  out  of  state,  how  verified,      19 
to    cross-bill,    when    demand- 
able 20 

amendments  requiring  new. ..       21 
to     exceptions     and     amend- 
ments         23 

time    allowed     after    amend- 
ments        S3 

on  overruling  plea,  etc 26 

exceptions    to,     when    to     be 

taken 27 

to  be  deemed  sufficient  if  not 

excepted  to 27 

reference  of  exceptions  for  in- 
sufficiency        28 

reference  of  second  or  third  for 

insufficiency 29 

exceptions  to,   for  acmdal  or 

impertinence 30 

when  deemed  sufficient 30 

to  amendments,  time  for  to  be 

fixed  by  the  commissioner. . .      32 
further  time  for,  on  exceptions 

submitted  to 35 

to  amendments  on  exceptions 
allowed 36 


306 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


Answer— Continued.  Rule 
to    amendments    and    excep- 
tions..         37 

when  defendant  may  decline 

to,  as  to  part  of  the  bill 43 

to  be  legally  written,  how  en- 
titled         67 

when  not  required  to  creditor's 

bill 105 

Appeals, 

from  commissioner 115 

when  to  stay  proceedings 115 

Appearance, 

when  and  bow  entered 11 

on  return  of  attachment  served  13 
penalty  for  refusing  to  enter. .  13 
defendant  who  has  not  entered. 

not  entiled  to  notice,  etc —       15 
how  compelled,  to   creditor's 

bill 105 

Application, 
for  order  as  to  absent  defend- 
ants.        IK 

«  for  dismissal  for  want  of  prose- 
cution        46 

for  special  commission 51 

to  enlarge  time  to  take  proofs..  59 
copy  of  special,  to  be  served 

with  notice 61 

for  review  of  commissioner's 

proceedings  74 

for  stay  of  proceedings 82 

for  relaxation,  of  cost  s 89 

for  discharge  of  receiver 107 

several  made  at  a  time,  orders..     110 

for  injunction 112 

Appointment, 
of  agent  to  be  in  writing,  signed 

and  filed 1 

of  receiver  on  creditor's  bill..  105  108 
Argument, 
notice  for,  of  plea  or  demurrer,      25 
of  exceptions  to  answer,  to  be 

heard  as  a  motion  39 

Assignment, 
to  receiver  on  creditor's  bill...    105 
not  precluded  by  injunction. . .     109 
Attachment, 
for   not    appearing,    when    to 

issu»* 12 

neglect  to  appear  on,  penalty 

for 13 

procedings  on,  to  compel  ap- 
pearance         18 

to  compel  answer  after  plea  or 

demurrer  overruled 26 

to  compel  payment  of  costs  of 

exceptions 37 

to  compel  further  answer 38 

may   issue,    for   interlocutory 

costs 100 

Attendance, 

of  witnesses,  how  obtained 57 

default    in,    before     commis- 
sioner          74 


Attendance— Continued.  Rule 
in  open  court,  compelled  in  di- 
vorce suits  99 

Attorney, 
of  complainant,  may  swear  to 

bill  when 7 

when  to  verify  creditor's  bill.      103 
Bank, 
accounts  with,    how  kept   by 

the  register 87 

orders  on,  how  drawn 88 

Bills, 

how  addressed 4 

of  nonresidents,  not  to  be  filed 

without  security  for  costs 6 

to  be  sworn  to,  when 7 

how  to  be  sworn  to 8 

manner  of  stating  matters  in. .        8 

taken  as  confessed 11 

copy  of,  served  when 11 

dismissed    for    non-service    of 

copy 14 

not   sworn   to,    amendable  of 

course 21 

amendment  after  answer 21 

amendment  of  sworn  bills 21 

injunction  bills,  how  amended,      21 
new  engrossment  of  amended,      21 
may    be    amended    after   de- 
murrer        22 

may  be  amended  on  exception 

allowed 23 

of  revivor  and  supplemental..      44 
may  b^  dismissed  for  want  of 

prosecution 46 

to  be  legibly  written,  how  en- 
dorsed       67 

dismissal  of,  if  papers  not  fur- 
nished       68 

for  foreclosure  of  mortgages, 

how  to  state  encumbrances..  91 
for  divorce,  etc.,  to  be  sworn  to,  95 
for  divorce,  to  contain  special 

averments 95 

of  review.not  to  be  filed  without 

leave 101 

by  judgment  creditors,  what  to 

state.. 103 

how  verified 103 

may  be  amended  103 

taken  as  confessed 105 

Bond, 
to  be   given    as   security   for 

costs 6 

on  appeal  from  commissioner..    115 
to  be  filed  and  returned  with 

appeal  papers 116 

Books, 
production     before     commis- 
sioner       73 

Calendar, 

how  made  up 63 

cause  may  be  entered  on  in 
term. .   64 


INDKX    TO    MICHIGAN    OHANOKRY     RULES. 


307 


Caption,  Rule 

of  orders  and  decrees,  form  of..        4 

to  state  where  made 4 

Cask, 
to  be  furnished  the  court   by 

complainant  at  hearing 62 

to  be  not  more  than  one-sixth 

as  long  as  pleadings,  etc 62 

Certificate, 
when  plea  or  answer  sworn  to 

out  of  state 19 

of  counsel,  to  petition  for  re- 
hearing       81 

Charges, 
and  discharges,    before    com- 
missioner', to  be  sworn  to  on 

accounts 77 

Circuit  Court  Commissioner, 
caption  of  orders  made  by.     ..        4 
time  of  hearing  motions,  etc., 

before 5 

may     require    new    bond    for 

costs 6 

reference  of  exceptions  to ... .        28 

report  on  exceptions 31 ,  34 

may  fix  time  for  further  an- 
swer       32 

exceptions  to  his  report,  how 

heard 39 

to  allow  interrogatories 50 

to  hear  application  for  special 

commission 51 

to  issue  subpoena  for  witnesses      57 
when  to  return  and  file  deposi- 
tions       58 

proceedings  on  order  of  refer- 
ence       70 

to  issue  summons  and  fix  time 

of  service 70 

how  proceedings  expedited. . .      71 
may  settle  order  of  proceed- 
ing        72 

may  direct  as    to    production 
and   custody  of   books  and 

papers 73 

when  may  proceed  ex  parte ...  74 
how  examinations  to  be  made .  75 
exceptions  for  impertinence  or 

insufficiency  of  papers 76 

how  accounts  taken  before. . ..  77 
may  examine  accounting  party 

on  oath 77 

may  allow  interest 77 

may  make  separate  report 78 

•ale  and  conveyance  of  land  by      80 

may  tax  costs 89 

to    compute   amount    due   in 

mortgage  cases 92 

reference  to,  as  to  surplus  on 

sale 93 

duties  of,  on  reference  of  di- 
vorce cases 96 

to  appoint  receiver    on  credi- 
tor's bill 105 

powers  as  injunction  master. . .    Ill 


Circuit  Court  Commissioner— 

Continued.  Rule 

restrictions  upon  powers  of...  112 
practice  before,  how  regulated,  113 
to  keep  register  of  proceedings,    114 

to  file  all  orders,  etc 114 

appeals  from  order  of 115 

to  return  bond  with  appeal  pa- 
pers       116 

to  return  appeal  papers  with 

certificate 117 

fees  of lis 

to  take  proofs  in  partition  suits    121 

Classes, 

of  causes  on  calendar 63 

notice  of  hearing,  to  specify. . .      64 

Clerk, 
of  solicitor,  service  on 3 

Collusion, 
to  be  denied  in  bill  for  divorce 
to  be  denied  in  creditor's  bill. , 
receiver  appointed  by 107 

Commissions, 
to  examine  witnesses,  how  ob- 
tained        48 

adverse  party  may  join  in 49 

special  may  be  granted 51 


95 

102 


2S 


h»w  executed  and  returned. 

how  opened  and  filed 

Common  Orders. 
what  are,  and  how  obtained. . . 
to  refer  exceptions  for  insuffi- 
ciency  

Common  Rule  Book, 
common  orders  to  be  entered 

in 24 

Complainant, 
when  to  give  security  for  costs,        6 

to  swear  to  bill,  when 7 

subpoena  subscribed  by 10 

to  deliver  a  copy  of  bill  in  fif- 
teen days  if  required 14 

may  proceed  ex  parte,  if  no  ap- 
pearance          15 

examination  of 16 

!     may  waive  answer  on  oath, how      18 
I     may  amend  bill,  when  and  how. 21-23 
I     to  refer  exceptions  in  ten  days,      28 
to  serve  a  copy  of  rule  in  cred- 
itor's suit 105 

Complainant's  Name, 
to    be    placed  first  in  title  of 

cause 67 

Computation, 

of  time  on  rules,  orders,  etc 85 

Concealed  Defendants, 

proceedings  against 16 

Confirmation, 

of  commissioner's  report 79 

Connivance, 

to  be  denied  in  bill  for  divorce,      95 
Consent, 
for   entry  of    order,   to  be  in 

writing  and  signed 24 

order  by,  how  entered 84 


308 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


Consent— Continued.  Rule 

to  be  negatived  in  bill  for  di- 
vorce        95 

decree  of  divorce  by,  not  per- 
missible          98 

to  pro  confesso  on  creditor's 
bill 105 

to  discharge  of  receiver 107 

Construction, 

of  injunction  on  creditor's  bill,     109 
Continuance, 

of  hearing  of  motions,  etc 5 

Conveyances, 

not  to  be  executed  before  en- 
rollment        80 

Copies  of  Pleadings, 

to  be  served  when 11 

to  be  furnished  to  the  court  on 
hearing 65 

by  whom  furnished 66 

Copy, 

of  subpoena,  to  be  served 10 

of  pleadings,  to  be  served 11 

of  bill,  order  of  course  to  de- 
liver in  fifteen  days,  or  decree 
dismissing  suit 14 

of  amendments  to  bill,  to  be 
filed 21 

of  order  expunging-  imperti- 
nent matter 34 

of  further  answer  after  excep- 
tions         35 

of  bill  of  costs  of  exceptions, 
served  when 37 

of  exceptions,  furnished  on 
hearing 39 

of  interrogatories,  to  be  served      50 

of  rule,  to  be  annexed  to  com- 
mission        52 

of  petition,  etc ,  on  special 
motion 61 

of  papers  to  be  furnished  on 
hearing 65 

of  points  to  be  furnished  on 
hearing 66 

of  petition  for  rehearing 81 

of  application  for  stay,  etc 82 

of  rule  to  be  served  in  creditor's 

suit 105 

Costs, 

security  for 6 

on  dismissal  for  non-service  of 
bill 14 

on  amendment  of  bill 21 

on  amendment  after  demurrer,      22 

of  hearing  issue  on  plea,  to  be 
paid 25 

of  hearing  on  plea  or  demurrer 
overruled 26 

of  exceptions  submitted  to,  to 
be  paid  by  defendant 27 

of  exceptions  for  scandal  or 
impertinence 30-34 

of  exceptions,  when  disallowed      34 


Costs— Continued.  Rule 

order  for  further  answer  and 

for  costs 36 

taxed  bill  to  be  served  before 

time  of  answering  expires. . .      37 
of  exceptions,  penalty  for  not 

paying 38 

of  hearing  on  exceptions,  dis- 
cretionary        39 

of  exceptions,  to  be  all  included 

inline  bill;  offset 40 

on  review  of    proceedings  by 

commissioner 74 

deposit  for  on  rehearing 83 

may  be  taxed  by  commissioner 

or  register 89 

not  to  be  paid  until  taxed 90 

ta  xation  of 90 

affidavit  filed 90 

to  be  verified  by  oath  on  taxa- 
tion        90 

notice  of  taxation  of 90 

where  bill  is  dismissed 90 

in  divorce  cases 90 

where  there  are  several  defend- 
ants         90 

apportioned  in  certain  cases. . .      90 
of  false  claims  to  overplus  on 

sales 93 

interlocutory,    to   be    paid   in 

twenty  days 100 

of  proceedings  to  compel  an- 
swer       105 

Counsel, 
certificate  to    petition  for  re- 
hearing        81 

Court, 

bills  to  be  addressed  to 4 

caption  of  decrees  and  orders        4 

time  of  hearing  motions 5 

may  require  new  bond  for  costs       6 
may  order  bond  for  costs   of 

residents 6 

Creditor's  Bills, 

form  of 102 

to  be  sworn  to 103 

may  be  amended  of  course 103 

receiver  on,  when  appointed  ex 

parte    104 

submission  of  defendant  on.   ..     105 
rule  to  be  served  with  subpoena,     105 

powers  of  receiver  on 106 

several  suits,  one  receiver 107 

receiver  not  to  pay  over  funds 

without  order 107 

discharge  of  receiver 107 

injunction  on,  effect  of 109 

Cross-Bill, 

when  to  be  answered 20 

Cross-Interrogatories, 

time  for  proposing  and  settling,      50 
Damages, 

deposit  for,  on  rehearing 83 

Date  op  Issue, 
to  give  priority  on  calendar. ...      68 


[NDEX    TO    MICHIGAN    CHANCERY    HULKS. 


309 


it 

26 

68 
80 
86 

98 
112 


56 


Debtor,  Rule 

when  excused  from  answering 

creditor's  bill 105 

Decrees, 

caption  of,  to  state  when  made, 

of  course,  of  dismissal  for  not 
serving  copy  of  bill 

pro  confesso,  after  overruling 
plea  or  demurrer 

by  default  at  hearing 

to  be  enrolled  before  execution, 

by  default,  may  be  set  aside. . . 

for  divorce,  etc.,  not  granted 
by  default  without  proof 

commissioner  cannot  vacate. . . 
Deeds,  Etc., 

not  to  be  read  at  hearing,  with- 
out order 

if  stated  in  bill,  and  not  denied 
by  answer,  may  be  read  on 

hearing  of  cause  56 

Default, 

appearance  may  be  entered  on. 

in  putting  in  further  answer.. . 

at  the  he  irinsr;  decree 

may  be  set  aside  on  terms 

divorce  not  granted  by 

on  creditor's  bill;  receiver 

Defendant. 

who  Lias  not  appeared  not  en- 
titled to  notice 2 

names  to  be  inserted  in  sub- 
poena       10 

to  appear  in  twenty  days  after 
service  of  subpoena 11 

attachment  for  not  answering,      12 

arrested  on  attachment,  to  en- 
ter his  appearance  and  an- 
swer        13 

may  have  bill  dismissed  for 
non-service  of  copy 14 

who  has  not  appeared  not  en- 
titled to  notice 15 

proceedings  against  absent 16 

may  submit  to  a  part  of  excep- 
tions       27 

may  decline  answering  any 
part  of  bill,  when 43 

proceedings  on  examination  of, 
as  a  witness  55 

when  excused  from  answering 

creditor's  bill 105 

Delay, 

dismissal  of  bill  for 

in  attendance  before  c  mimis- 

sioner 

Demurrer, 

when  to  be  put  in  within  twenty 
days 

for  want  of  parties,  amendment 
of  course  on 

amendments  to  bill  after 

when  may  be  noticed  for  hear- 
ing.     .' 25 

time  to  amend  bill  after 25 


16 


2  J 


Demurrer — Continued.  Rule 
overruled  as  frivolous  or  other- 
wise, order  on 26 

when  not  to  be  held  bad 41,  42 

how  placed  on  calendar,  and  in 

wha1  class 63 

Deposit, 
of  books  and  papers  for  exam- 
ination  in  commissioner's 

office    73 

to  be  made  on  rehearing,  with 

register 83 

accounts  of  register  as  to 87 

orders  for  payment  of 88 

to  be  made  on  filing  bill  of  re- 
view      101 

Depositions, 
commissions  to  take,  how  ob- 
tained    48 

adverse  party  may  join  in  com- 
mission        49 

settlement  of  interrogatories..      50 
special  commission  to  take....      51 

how  taken  and  returned 52 

opening,  endorsing  and  filing..      53 
suppression  of,  not  to  be  made 

except  on  special  motion  —      54 
register  to  notify  solicitor  when 

received 54 

solicitor  to  notify  opposite  soli- 
citor when  received 54 

to  be  returned  and  filed  in  ten 

days  after  proofs  closed 58 

copies  to  be  furnished  the  court      65 
how    taken,    on    reference    to 

commissioner 75 

Deputy  Register, 

may  be  agent 1 

Disallowance. 

of  exceptions,  when  final 34 

Disbursements, 

items  of,  in  bill  of  costs 90 

Discharge, 
of  receiver  in  creditor's  suits. .     107 
of  debtor  under  insolvent  laws.    109 
Discovery, 

from  defendant,  how  obtained.      12 
Discretion, 
as  to  amendment  after  demur- 
rer       22 

as  to  costs  of  hearing  on  ex- 
ceptions       39 

as  to  preference  of  causes  on 

calendar 63 

as  to  production  of  books  and 

papers 73 

as  to  costs  of  separate  reports.      78 
extending     time    and    setting 

aside  defaults 86 

as  to  costs  on  motions 90 

as  to  costs  on  reference  as  to 

surplus 93 

Dismissing  Bill, 

for  non-service  of  copy 14 

for  want  of  prosecution 46 


310 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


Dismissing  Bill— Continued.        Rule 

for  default  at  hearing 68 

for  failure  to  attend  when  re- 
quired in  divorce  causes 99 

Distance, 
of  agent's    office  from  regist- 
er's         1 

how  affects  time  of  service 3 

from  home,  witness  compelled 

to  go 57 

how  affects  notices  of  hearing, 

etc 61 

how   affects   service  of   sum- 
mons    70 

Distribution, 

of  surplus  on  sale 93 

Divorce, 

bills  for,  to  be  sworn  to 95 

reference  to  take  proof 96 

matters  set  up  in  bar  of,  how 

tried 97 

decree  of,  not  of  course  on  de- 
fault       98 

party  or  witnesses  may  be  re- 
quired   to    testify    in    open 

court 99 

Documentary, 
evidence  not  to  be  read  with- 
out order 56 

Double  Time:, 
■when  service  on  an  agent  or  by 

mail 3 

Encumbrances, 

how  set  mi!  iii  !'■  Teclosure  bill.      91 
Endorsement. 

on  commission  returned 53 

complainant's     name     placed 

first 67 

Enrollment, 
of  decree:  fore 

execution 80 

of  decrees,  no    i  i  sue 

without '. 80 

Entitling, 
of  pipers,  complainant's  name 

to  be  placed  tirst 67 

Entry. 
of  common  orders,  how  made,      24 
of  special  orders,  how  made. . .      24 
of   special    orders    made  at  a 

time  110 

on  resister,  fees  of  commission- 
er for 118 

Equitable  Interests, 

how  reached,  creditor's  bills. . .     102 

assigned  to  receiver 105 

Examination, 

of  witnesses  in  open  court 47 

of  same,  before  commissioner.      47 

of  witnesses  on  commission 48 

of  defendant  as  a  witness 55 

of   witnesses,    how    time    en- 
larged        59 

of  h  m.I;-.,  etc  ,  before  commis- 
sioner         73 


Examination— Continued.  Rule 

of  parties,  etc.,  before  commis- 
sioner         75 

accounting  before  a  commis- 
sioner        77 

of  defendant  to  creditor's  bill..    105 
Exceptions, 

not  to  prevent  motion  to  dis- 
solve injunction 17 

not  to  prevent  dissolution  of 
injunction  or  discharge  of  ne 
exeat -      17 

for  insufficiency,  not  allowed 
where  oath  is  waived 18 

for  scandal  and  impertinence. .      18 

submitted  to  or  allowed; 
amendments 23 

to  answer,  to  be  filed  in  twenty 
days 27 

notice  of  submission  to  answer 
same 27 

not  submitted  to,  to  be  referred 
in  ten  days 28 

to  be  stated  on  reference  of 
second  and  third  answer 29 

for  scandal  or  impertinence, 
how  taken 30 

commissioner's  report  on, 
when  to  be  procured 31 

to  report  on  exceptions 33 

when  to  become  absolute 33 

commissioner's  report  on, 
when  conclusive 34 

bill  of  costs  for,  to  be  served 
when 37 

to  report  on,  to  be  heard  as  a 
special  motion 39 

costs  on  regula  ted 39 

costs  on,  to  be  in  one  bill 40 

costs  on,  not  allowed  in  certain 

s   40 

to  commissioners  report, 
papers  to  he  furnished 65 

to  proceedings  before  commis- 
sioner 76 

limited  to  objections  taken  be- 
fore comuiissio   er 76 

to  report  of  commissioner 79 

Execution, 
to  compel  payment  of  costs  of 

exceptions 37 

of  commission 49,  52 

for  interlocutory  costs,  when . .     100 

Exhibits, 
how  to  be  annexed  to  deposi- 
tion          52 

to  be  produced  before  commis- 
sioner        56 

to  be  returned  and  filed  before 

hearing 58 

abstracts  of,  to  be  furnished . .      65 
Ex  Parte, 
when  complainant  to  proceed.      15 
when  commissioner  to  proceed,      74 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


311 


Ex  Parte— Continued.  Rule 

application  for  stay  of  proceed- 
ings   .' 82 

proceedings  on  creditor's  bill..     104 
Extension, 

of    lime    for   complying    with 

rules,  etc 86 

Fees, 

to  be  detailed  on  bill  of  costs. .      90 

allowed  in  certain  cases 90 

of  witnesses,  how  stated 90 

of  commissioners 118 

Feigned  Issues, 

how  made  and  tried 47 

Foreclosure  Suits, 

proceedings  in 91 

bill,  what  rights  to  state 91 

reference  in  suits  of  course  to 
compute 92 

proofs  as  Co  infants  and  absent 
defendant-* 92 

affidavit  of  regularity 92 

sales ;  notice  and  time  of 92 

reference  as  to  surplus 93 

on    report    of     commissioner 

thereon 93 

Form, 

of  address  of   bills  and    peti- 
tions        4 

of  caption  of  orders  and  de- 
crees          4 

of   execution    and    return    to 
commission 52 

of  chancery  subpoena,  and  how 

printed 122 

Fraud, 

in  appointment  of  receiver —     107 
Guardian  ad  Litem. 

not  to  receive  infant's  property 

without  security 94 

Hearing, 

of  motions  and  petitions 5 

of  exceptions  to  report  on  ex- 
ceptions       39 

on  bill  and  answer,  if  no  repli- 
cation is  filed 45 

on   pleadings,    if    no  order  to 
take  proofs 47 

deeds  not  to  be  read  on,  with- 
out order 56 

deeds  may  be  read  in  certain 
cases        56 

judgments,  or  other  matter  of 
record  may  be  read 56 

may     be    noticed    by     either 
party 60 

time  to  notice  of,  how  regu- 
lated       61 

case  to  be  furnished  court  on, 
in  certain  cases 62 

calendar    of     causes    for  how 
made  up 63 

when    bill    is    taken     as    con- 
fessed         64 


Hearing— Continued.  Rule 

to  be  noticed  for  first  day  of 

term 64 

papers  fco  be  furnished  on 05 

who  to  furnish  papers  for 66 

decrees  by  default  at 88 

on  order  of  reference  70 

in  mortgage  cases  92 

in  divorce  causes 98 

Impertinence, 
exceptions  for,   when  oath  to 

answer  waived 18 

exceptions  for,  how  taken 30 

report  on,  when  to  be  final 34 

in  proceedings  before  commis- 
sioner           76 

Impertinent  Matter, 
excepted  to,    though    oath  to 

answer  vvaived 18 

order  to  expunge 34 

in  proceedings  before  commis- 
sioner        76 

Incumbrances. 
no*t  to  be  stated  at  length  in 

foreclosure  suits 91 

Infants, 
reference  of  mortgaged  cases 

against 92 

guardians  not  to  receive  pro- 
perty of,  without  giving  secu- 
rity        94 

proofs  in  partition  against 121 

Informality, 
how     depositions    suppressed 

for 54 

Information  and  Belief, 
matters  stated  on,  how  to  be 

sworn  to 8 

Injunctions, 
exceptions  to  answer   not    to 

prevent  dissolution  of 17 

injunction  bills,  bow  amended.      21 
amendments  of  course  to,  not 

allowed 23 

effect  of,  on  creditor's  bill 109 

restrictions  upon  right  of  com- 
missioner to  grant 112 

Inspection, 

of  hooks  and  papers 73 

Instructions, 

to  be  annexed  to  commission..      52 
Insufficiency, 

exceptions  to  answer  for 27 

reference  of  exceptions  for 28 

reference  of  second    or  third 

answer  for 29 

on  exceptions  for,  further  an- 
swer        35 

Interest, 
on  accounting  before  commis- 
sioner                77 

Interrogatories, 

to  examine  foreign  witnesses..       50 
copies  of  to  be  served  on  ad- 
verse party 50 


312 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


Irregularity,  Rule 

how  deposition  suppressed  for,      54 
Issue, 
on  plea  allowed,   when  to  be 

t  tken 25 

on  filing  general  replication...       45 
note  of,  to  be  delivered  to  the 

register 64 

what  causes  to  have  priority 

from  date  of  on  calendar 63 

on  defence  to  divorce  bill,  how 

tried 97 

Issues, 
unless   agreed    upon  shall   be 

framed  by  circuit  judge 47 

feigned,  how  made 47 

Jurat, 
to  sworn  bill,  answer  or  peti- 
tion         8 

List, 

of  agents,  to  be  kept 1 

Mail, 

service  by,  whom  and  how 2 

srvice  by,  double  time 3 

Monky, 

order  for  payment  of 88 

Mortgage  Cases, 

preference  of,  on  calendar (J3 

how  r  ghts  of  subsequent  pur- 
chasers, etc  ,  set  out 91 

reference  of  course,  to  compute 

amount 92 

reference  as  to  surplus  mon- 
eys       93 

Motions, 

when  to  stand  over 5 

to  be  made  on  the  day  of  notice,       5 
for   attachment     for    not    an- 
swering        12 

for  order  as  to  absent  defend- 
ants        16 

to  dismiss  bill  for  want  of  prose- 
cution        46 

to  suppress  depositions 54 

special  notice  of,  how   to  be 

given 61 

submission  of,  how  entered  . . .      69 

for  stay  of  proceedings 82 

for  reference  in  divorce  causes,      96 
several  made  at  a  tim«,  orders..    110 
what  may  be  made  before  com- 
missioner      Ill 

Name. 
of  agent  and  solicitor  specified,        1 
of  defendants,  inserted  in  sub- 
poena           10 

of  witnesses,  to  be  examined 

on  commission 48, 49 

of    complainant     first   in    en- 
titling       67 

of  witnesses,  to  be  given  in  bill 

of  costs 90 

Ne  Exeat, 
exceptions  to    answer  not    to 
prevent  discharge  of 17 


Next  Friend,                                   Rule 
to  give  security,  before  receiv- 
ing money  of  infants 94 

Non-Resident, 
complainants  to  give  security..  6 
defendants,  order  for  appear- 
ance of 16 

Note  of  Issue, 

when  to  be  delivered 64 

Notice, 

when  it  may  be  served  on  agent,  2 

when  to  put  in  post-office 2 

of  all  pleadings,  to  be  served. .  2 
not  required,  when  defendant 

has  not  ai  >peared 2 

when  double  time  required  ...  3 
how  served  in  absence  of  solici- 
tor   3 

serven  in  open  office 3 

served  at  residence 3 

of  motion  for  attachment  12 

of  order  for  copy  of  bill 14 

not  required,  if  no  appearance,  15 
of  amendments  to  injunction 

bill 21 

of   argument  of    plea   or   de- 
murrer   25 

of  submission  to  answer  excep- 
tions   27 

of  reference  of  exceptions 28 

of  order  for  further  answer. ...  35 
of    hearing  exceptions   to    re- 
port   39 

of  hearing  on  bill  and  answer..  45 

of  hearing  on  pleadings 47 

of  examination  of  witnesses. . .  47 
of  application  for  a  commis- 
sion   48 

of    application   for   a   special 

commission 51 

of  receipt  of  depositions 54 

of  order  to  read  documents  on 

hearing 56 

of  application  to  enlarge  time 

to  take  proofs 59 

of  hearing  and  special  motions, 60,  61 
of  hearing  to  be  for  first  day  of 

term '  64 

to  register  to  place  cause  on 

calendar 64 

to  attend  on  reference,  time  of 

regulated 70 

of  order  nisi  to  confirm  report  .  79 

of  sale  of  real  estate 80 

of  petition  for  rehearing 81 

of  application  for  stay 82 

computation  of  time  on 85 

of  taxation  of  costs 90 

of  foreclosure  sales 92 

of  claim  to  surplus  on  sale 93 

to  require  sworn  answer 105 

of  auction  sal<-s  by  receivers. . .  106 
of  motion  tor  discharge  of  re- 
ceiver    107 

of  application  for  injunction. . .  112 


INDNX    TO    MICHIGAN    CHANCERY    RULES. 


313 


Notice— Continued.  Rule 

to  be  embodied  in  subpcena 122 

Nullity, 
of  marriage,  bill  for,  to  be  veri- 
fied by  oath 95 

of  marriage,  reference  to  take 

proofs 96 

Oath, 

to  bills  and  answers 7,  8 

to  answer,  how  waived 18 

to  plea     or     answer,     before 

whom 19 

to  amendments  to  sworn  bills..      52 
to  be  administered  to  witnesses      52 

to  accounts,  etc 77 

to  bill  for  divorce.' 95 

to  creditor's  bill 103 

Office, 

agent  must  have 1 

service  in,  of  solicitor 3 

Officers, 
fees  of,  to  be  detailed  in  bill  of 

oosts 90 

not  to  tax  their  own  costs  ...       90 
Offset, 

of  costs  on  exceptions 40 

Order, 

form  of  caption  of 4 

caption  of,  to  state  truly  where 

court  was  held 4 

by  circuit  court  commissioner,        4 
to  take  bills  as  confessed  for 

neglect  to  appear 11 

that    defendant's    appearance 

be  entered  on  attachment. . .       13 
to  deliver  a  copy  of  bill  in  fif- 
teen days 14 

for  absent  defendants  to  ap- 
pear       16 

to  answer  cross-bill 20 

of     course,     to     amend     not 

necessary 21 

required  to  amend   injunction 

bill 21 

what  common  and  what  special      24 
of  course,  and  by  consent  how 

entered 24 

to  answer  on  overruling  a  plea 

or  demurrer 26 

to  refer  exceptions  to  answer, 

if  not  submitted  to 28 

to  refer  second  or  third  answer 

on  old  exceptions ...      29 

to  refer  exceptions  for  scandal 

or  impertinence 80 

to  expunge  impertinent  matter      34 
for  a  further  answer  on  sub- 
mission to  exceptions 35 

for    same   on    exceptions    al- 
lowed          36 

to  answer  amendments  and  ex- 
ceptions       37 

on  default  in  answering  excep- 
tions for  insufficiency 38 


Order— Contiuued.  Rule 

to    dismiss    bill    for    want    of 

prosecution 46 

to   examine   witnesses  before 

commissioner.   47 

closing  proofs 47 

for  special  commission  to  ex- 
amine witnesses 51 

to  examine  defendant  as  wit- 
ness        55 

for  leave  to  prove  exhibits  at 

hearing 56 

to  enlarge  time  for  examina- 
tion of  witnesses 59 

of  hearing  calendar  causes  at 

term 63 

to  dismiss  bill  for  default  at 

hearing 68 

of  reference,  proceedings  on..      70 
of  reference,  how  expedited. . .      71 
to  confirm  commissioner's  re- 
port         79 

affecting  merits  to  be  included 

in  enrollment 80 

to   stay    proceedings,   and    to 
show  cause,  how  obtained. . .      82 

by  consent 84 

nisi,  to  be  orders  of  eight  days..      85 
to  extend  time,  by  whom  al- 
lowed       86 

for   payment    of   moneys   de- 
posited        88 

of      reference      to      compute 

amount  due  on  mortgage 92 

as   to    surplus    on    mortgage 

sales 93 

of  reference  to  divorce  cases..  96 
to  pay  costs,  how  enforced —  100 
for  leave  to  file  a  bill  of  review, 

deposit  required  on _     101 

for  receiver  on  default,  credi- 
tor's bill 104 

pro  confesso  and  for  receiver. .  105 
for  receiver  to  pay  over  money,    107 

for  discharge  of  receiver 107 

several,  when  to  be  entered  as 

one..! 110 

made  by  judge,  not  to  be  va- 
cated by  commissioner 112 

to  stay  proceedings,  on  appeal 

from  commissioner 115 

of  reference  in  partition  suits..    121 
Papers, 

may  be  served  on  agent 2 

served  on  clerk  or  partner 3 

served  in  open  office 3 

served  at  residence 3 

to  be  furnished  for  hearing. ...      65 

furnished  for  rehearing 55 

to  be  furnished  by  whom 66 

to  be  legally  written 67 

how  entitled  and  endorsed 67 

production     before     commis- 
sioner       73 

on  appeal,  to  be  filed 117 


314 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


Parol,  Rule 

agreements  between  solicitors 

not  allowed 84 

Partition  Suits, 

proof's  in 121 

decree  in 121 

Partner, 

of  solicitor,  service  on 3 

Party, 

how  examined  as  witness 55 

examined  orally  in  open  court,      90 
Petitions, 

how  addressed 4 

to  be  presented  on  day  of  no- 
tice         5 

how  to  be  verified 8 

for  a  commission  48 

for  special  commission 51 

for  a  rehearing 81 

Plea. 
when    to    be   put    in    within 

days 11 

before  whom  to  be  sworn  to..      10 
time  to  apply  to  or  amend  bill,      25 
when  may  be  noticed  for  argu- 
ment       25 

if  allowed,  complainant   may 

take  issue  on  within  ten  days,      25 
overruled   as    frivolous,    pro- 
ceedings on 26 

not  to  be  held  bad  for  certain 

causes 41, 42 

Pleadings, 

notice  of,  to  be  served 2 

copies  of,  to  be  served  when  . .       11 
to  be  abbreviated  for  the  court 

on  the  hearing 62 

copies    to    be    furnished    the 

court 65 

by  whom  to  be  furnished  on 

hearing 66 

to  be  fairly  written 67 

Pluries. 

process  may  be  issued 9 

Points, 

copies  to  be  furnished 66 

Postage, 
to  be    prepaid  on    service  by 

mail 2 

Practice, 
customary  practice  to  govern 
in  absence  of  statute  or  rule..    119 
Preferench, 
on  calendar,   what  causes  Ito 

have 63 

Priority, 

of  causes  on  calendar 63 

on  liens  on  surplus  on  sale 93 

Privity, 

to  be  denied  in  divorce  bill 95 

Proceedings, 

stay  of,  how  obtained 82 

Process, 
when  returnable 9 


Process— Continued.  Rule 

may  be  renewed,  of  course,  if 

not  served 8 

to  compel  attendance  of  wit- 
nesses        57 

upon  decrees,  by  whom  to  be 

sealed 80 

final,  not  to  issue  until  enroll- 
ment       80 

Pro  Confesso, 

after  service  of  subpoena 11 

against  absent  defendants 16 

after  plea  or  demurrer  over- 
ruled, etc 26 

on  failure  to  answer  further. . .      08 
cases  to   have  preference  on 

calendar    63 

Procurement, 

to  lie  denied  in  divorce  bill 95 

Reasons, 

for  appeal,  to  be  filed 117 

Receivers, 

appointed  ex  parte,  when 104 

how  appointed    on    creditor's 

bill 106 

powers  of,  on   creditor's  bill; 

sales  by 106 

on  several  bills,  only  one  ap- 
pointed      107 

to  give  security,  amount  of...     107 

discharge  of 107 

not  to  pay  money  to  parties 

without  order 107 

to  keep  separate  accounts 108 

only  one  to  be  appointed 108 

for  subsequent  suits 108 

assignment  to,  not  precluded 

by  injunction. . 109 

Reference, 
of  non-appearance  of   absent 

defendants 16 

of  exceptions  to  answer  for  in- 
sufficiency       28 

of  second  and  third  answers  on 

old  exceptions - 29 

of  exceptions  for   scandal  or 

impertinence 30 

of  exceptions,  costs  on 40 

proceedings  and  notice  required      70 
to   compute   amount    due    on 

mortgage 92 

as  to  surplus  on  m  ortgage  sales  93 
in  divorce  cases,  how  obtained. .  96 
by  consent  on  creditor's  bills . .  105 
to  take  proofs  in  partition  suits  121 
Register, 

may  be  agent        1 

to  keep  list   of  agents  in  his 

office 1 

when  appearance  may  be  en- 
tered by 11 

not    to    permit    unauthorized 

amendments 21 

to  keep  common  rule  book 24 


INDKX    TO    MICHIGAN    CHANCERY    RULES. 


315 


REQiSTKR--Contimied. 


Rule! 


to  issue  commissions  to  take 

testimony 48 

to  open  and    file    commission 

returned 58 

to  give  notice  of  receipt  of  de- 
positions         ">4 

to  make  up  calendar 64 

not  to  file  illegible  papers •   6? 

how  to  enter  submission,  etc. .  09 
to  issue  and  seal  final  process . .  80 
deposit  on  rehearing  to  be  paid 

to  him        83 

accounts  of  money  deposited. .      87 

may  tax  costs Si) 

ol  proceedings,  to  be  kept  by 

commissioner 114 

orders  of  commissioner  to  be 

file  i  with 114 

Recti,  arity, 
affidavit  of,  in  mortgage  cases,      92 
affidavit  of,  in  divorce  cases. . .      96 
Rehearing, 

papers  to  be  furnished  on 65 

certificate  of  counsel,  etc.,  on 

application  for 81 

deposit  on,  to  be  made  in  ten 

days 83 

Replication, 
if  not  file  I,  answer  admitted. . .       IS 

to  plea,  when  to  be  filed 25 

when  to  be  filed 45 

special,  not  without  leave 45 

Report, 
on  exceptions,  when  to  be  ob- 
tained   

on  exceptions,  to  specify  time 

for  further  answer 

on  exceptions  for  impertinence, 

when  ril'j<i 

on  exceptions,  when  to  become 

absolute 

disallowing  ex  'eptions,  final. .. 
exceptions  to,heard  as  a  motion 
objections  to.    must  be  made 

before  commissioner , 

separate,  when  may  be  made. . 

order  to  confirm  nisi T!) 

of  proofs  in  partition  suits 121 

Residence. 
of  agent  and  solicitor  specified,        1 
of  solicitors  not  in  same  city, 

service  ma}-  be  on  agent 2 

service  at,  of  solicitor 3 

of  witnesses  to  be  examined  on 

commission 48,  49 

distance  from,  witnesses  com- 
pelled to  go 57 

how  affects  return  day  of  sum- 
mons        70 

Restrictions, 
on    power   of   e  uumissioners, 

supreme  court  may  make. ...     Ill 
made  by  rule 112 


31 


Retaxation,  Rule 
to  be  granted  by  court  in  cer- 
tain cases 89 

Return, 
of  commission 52 

Return  1>ay, 

of  process 9 

service  may  be  on  or  before ...      10 

Review, 
by  commissioner,   of  his  pro- 
ceedings       1*4 

bill  of,  leave  must  be  obtained,    101 

Revivor, 
bills  of,  what  need  not  set  forth,      44 

Rule, 
to  be  annexed  to  commission . .      52 

nisi,  when  to  take  effect 85 

computation  of  time  on 85 

to  be  served  in  creditor's  suits,     105 
when  take  effect 120 

Sales, 

on  foreclosure 92 

distribution  of  surplus  on 93 

proceeds  of  belonging  to  infant,      94 

of  real  estate,  by  receiver 106 

of  desperate  debts,  by  receiver,     106 

at  auction,  notice  of 106 

Scandal, 
exceptions  for,  though  sworn 

answer  waived 18 

exceptions  for,  how  taken 30 

when  report  on  to  be  received        31 

order  to  expunge 34 

report  disallowing  exceptions, 

final 35 

in  proceedings  before  comniis- 

'      sioner 76 

Seal, 

process  to  be  under 10 

to  be  shown  on  service  of  sub- 
poena        10 

jurat  of  foreign  notary  to  be 

under 19 

to  final  process 

Security, 
to  be  given  by    non-residents 

before  bill  filed 6 

required  of  special  guardians. .      94 

required  on  bill  of  review 101 

to  be  given  bj  receiver 107 

Separation, 
reference  to  take  proof  on  bill 

for 96 

not  granted  of  course,  in  any 

case 98 

Service, 
may  be  on    agent    in  certain 

cases. 2 

by  putting  in  post-office 2 

not  required   when    defendant 

has  not  appeared ~ 

when   on    agent   or  by    mail, 

double  t  ime  required 3 

of  subpoena,  how  made 10 


316 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


Service— Continued.                       Rule 
of  affidavit,    etc.,  for   attach- 
ment    12 

of  copy  of  bill,  order  for 14 

of  amendments  to  bill 21 

of  taxed  bill  of  costs  of  excep- 
tions   37 

of  interrogatories 50 

of  copy  petition,  etc.,  on  special 

motion 61 

of  commissioner's  summons ...  70 

of  petition  for  reheariner 81 

of  copy  rule  in  creditor's  suits,  105 
Settlement, 

of  interrogatories 50 

Several  Orders, 

when  to  be  entered  as  one 110 

Signature, 

to  appointment  of  agent 1 

of  foreign  judge  to  jurat,  cer- 
tificate    19 

to  consent  of  entry  of  order. . .  24 

to  submission  of  the  cause 69 

to  consent  or  agreement 84 

Solicitors, 

to  have  agents  in  each  circuit.  1 

service  may  be  on  agent  of 2 

service  at  office  of 3 

service  at  residence  of 3 

may  swear  to  bill  when 7 

subpoena  subscribed  by 10 

to  give  notice  of  return  of  de- 

position* 54 

to  verify  bills  of  costs  before 

taxation 90 

Special  Orders, 

what  are 24 

Statement, 
in  bill  of  revivor  and  supple- 
mental   41 

Stat, 

of  proceedings,  how  obtained. .  82 

on  appeal  from  commissioner,  115 
Submission, 

to  answer  exceptions 27 

to  exceptions  for   scandal   or 

impertinence 30,  31 

to  exceptions,  costs  on 40 

of  causes,  how  made 69 

SUBPC3NA. 

return  day  of 9 

to  contain  names  of  all  the  de- 
fendants        10 

how  to  be  served 10 

for  witnesses,  what  to  specify.      57 
form  of 122 

Subscription, 
of  subpoena 10 

Subsequent  Purchasers, 
how  rights  of  set  out  in  fore- 
closure bill 31 

Substanc  k, 
of  oath  to  be  stated  in  jurat. . .        8 

Summons, 
time  of  service  required  on  . . .      70 


Summons— Continued.  Rule 

to  be  considered  peremptory . .      74 
to  be  served  on  encumbrancers 

who  have  filed  claims 9* 

Sunday, 
process  not  returnable  on ..... .        9 

when  not  included  in  computa- 
tion of  time  85 

Supplemental  Bill, 
when  need  not  set  forth  orig- 
inal       44 

Suppression, 

of  depositions,  for  irregularity,      54 
Surplus, 
on     sales,     distribution,     how 

made 93 

Taxation, 

as  to  impertinent  matter 34 

of  costs  on  exceptions,  when . .      40 

of  costs,  by  whom 89 

of  costs,  regulated 90 

Term, 
notice  for  argu  nent  of  plea  or 
demurrer   at     next    or    any 

subsequent 25 

notice  of  hearing  to  be  for  first 

day 64 

Thrms, 
may  be  imposed  for  amending 

bill  after  demurrer 22 

may  be  imposed  for  second  ex- 
tension    of    time     to    take 

proofs 59 

may  be  imposed  for    setting 

aside  default 86 

Testimony, 
of  complainant,  on  reference. .      16 

when  and  how  taken,  etc 47 

of  witnesses,  taken  on  commis- 
sion       48 

of  defendant  as  a  witness 55 

to  be  returned  and  filed  before 

hearing 58 

before    commissioner,     to   be 

taken  and  preserved . .      75 

in  partition  suits 121 

Time, 
for  service    on    agent,    or    by 

mail   3 

for  service  on  solicitor 3 

for  service  in  open  office 3 

of  hearing  motions  and  peti- 
tions         3 

when  process  made  returnable,        9 

for  entering  appearance 11 

when  to  plead,  answer  or  de- 
mur           11 

of     answering     after   attach- 
ment       13 

when    complainant    must   de- 
liver copy  of  bill 14 

of  amending  bill,  of  course 21 

of  amending  bill  after  demur- 
rer       2* 


INDEX    TO    MICHIGAN    CHANCERY    RULES. 


317 


Time— Continued.  Rule 

of  entry  of  common  order  to 

be  noted 24 

to  reply  to  plea,  or  amend  bill,      25 
to  answer  and  pay  costs  after 

plea  or  demurrer  overruled..      26 
to  take  exceptions  to  answer. .      27 
of  notice  of  submission  to  ex- 
ceptions        27 

of  reference  of  exceptions  to 

answer 28 

for  procuring  and  filing  report 

on  exceptions 31 

for  excepting  to  report  on  ex- 
ceptions        33 

for  paying  costs  of  exceptions.      34 
for  further   answer  after  ex- 
ceptions       35 

to  answer  amendments  and  ex- 
ceptions       37 

of  noticing  for  hearing  on  bill 

and  answer 45 

for  taking  testimony 47 

when  proofs  to  be  closed  47 

for  applying  for  a  commission,      48 
for  serving  copies  of  interroga- 
tories       50 

of  receiving  commission,  to  be 

endorsed  on  it 53 

for  suppressing  depositions. ...      54 

for  filing  depositions 58 

for  service  of  notice  of  hear- 
ing  60,  61 

for  filing  notes  of  issue 64 

for  service  of  commissioner's 

summons 70 

for  proceedings  on  reference..      71 
for   notice  of   application  for 

stay 82 

on  rules  and  orders,  how  com- 
puted       85 

may  be  extended  in  all  cases. .      86 
of  notice  and  sales  in  foreclos- 
ure suits 92 

for  payment  of  interlocutory 

costs 100 

of  auction  sales  by  receiver. . . .     106 
of  appeals  from  commissioner,    115 
Understanding, 
in  divorce  bill,  to  be  denied 95 

UNDERWRITING, 

form  of,  to  subpoena 122 

Vacation, 
process  may  be  returnable  in . .        9 


Vacation— Continued.  Rule 

of  order  made  by  judge,    by 

commissioner 112 

Verification, 

of  bills,  when  and  how 7.  8 

of  amendments  to  sworn  bills..      21 

of  petition  for  rehearing 81 

of  divorce  bill 95 

or  creditor's  bill 103 

Waiver, 

of  anuwer  under  oath 18 

of  exceptions  for  insufficiency.      28 

exceptions  for  scandal,  etc 30 

of  exceptions  generally 31 

Witnbsses, 
examination  of  before  commls- 

S'oner 47 

commission  for  examination  of      48 
adverse  party  may  join  in  com- 
mission       49 

out  of  state  to  be  examined  on 

interrogatories 50 

order  to  examine  defendants . .      55 
the  court  may  call  either  party 

to  testify  in  certain  cases ....      55 
not  compelled  to  travel  over 

forty  milts 87 

subpoenas    to    compel  attend- 
ance of 57 

how  examined  on  reference. . .      75 
fees  of,  how  set  out  in  bill  of 

costs 90 

may    be    examined    in    open 

court 99 

may  be  examined  on  creditor'! 

bill 105 

Writing, 
appointment  of  agents  to  be  in,        1 
consent  to  entry  of  order  to  be 

in 24 

notice  of  submission  to  answer 

exceptions 37 

interrogatories  to  witnesses  out 

of  state 50 

examination    of   witnesses    on 

commission 52 

not   to    be    read    on    hearing, 

without  order        56 

submissions  to  be  in 69 

agreements  to  be  in 84 

consent    to    pro    coufesso    on 

creditor's  bill 105 

consent   to   discharge    of    re- 
ceiver       107 


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